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These are appeals under Section 35L b of the Central Excises and Salt Act the Act from an order of the Customs, Excise and Gold Control Appellate Tribunal dated 30th July, 1986. The question before the Tribunal was as to whether the excise duty in respect of cartons manufactured by the respondents was leviable under the Act. These cartons had been exempted from payment of duty upto 27-2-1982 under Notification No. 105/80. However, the Finance Act of 1982 made these cartons eligible to duty under the Tariff Item 17 4 with effect from 28-2-1982. The plea of the assessee was that the cartons, the levy of duty on which was under challenge, had been manufactured before 28-2-1982 and were in stock on that date and the levy cannot attach to them merely because they were cleared after 28-2-1982. The Tribunal accepted the companytention raised on behalf of the assessee and, following certain earlier judgments of the Tribunal, held that the pre-budget stocks of cartons which were cleared after the introduction of the new budget would number be chargeable to excise duty. The Collector, Central Excise has preferred this appeal.

Dr Dhananjaya Y Chandrachud, J 1 The present appeal arises from a judgement of the National Consumer Disputes Redressal Commission1 which reversed the judgment of the Chhattisgarh State Consumer Disputes Redressal Commission2. The SCDRC had affirmed the view of the District Consumer Disputes Redressal Forum, Durg3 allowing an accident insurance claim. 2 The spouse of the appellant obtained three insurance policies from the Life Insurance Corporation of India4 i Signature Not Verified New Bima Gold Policy Digitally signed by SANJAY KUMAR Date 2019.04.24 160637 IST Reason 1 NCDRC 2 SCDRC 3 the District Forum 4 LIC of India LIC Jeevan Tarang Policy and Twenty Years Money Back Policy with profits and accident benefit. The details of the policies are tabulated below Policy No Policy Date of Total Term Sum Premium Number Commenceme Assured in Rs nt Rs 1 Bima Gold 27.06.1992 75-20 50,000 3188/- Policy yearly 370473369 2 LIC New 10.08.2006 178-10 2,00,000 21134/- Bima Gold yearly Policy 384067139 3 Twenty 11.01.2008 179-12 2,00,000 7641/- Years half-yearly Money Back Policy with accident benefit 385316764 Condition 10 2 of the first policy, companydition 10 b of the second policy and companydition 11 b of the third policy companytain a stipulation for accident benefit, on which the companytroversy in the present case rests. The stipulation in the New Bima Gold Policy in relation to accident benefit is extracted below, in so far as is material Death of Life Assured In addition to sum assured under Basic Plan, an additional sum equal to the Accident Benefit Sum Assured shall be payable under this policy, if the Life Assured shall sustain any bodily injury resulting solely and directly from the accident caused by outward, violent and visible means and such injury shall within 180 days of its occurrence solely, directly and independently of all other causes result in death of the Life Assured. Emphasis supplied The stipulations in the other two policies are similar, where the accident benefit was payable if the assured sustained any bodily injury resulting solely and directly from the accident caused by outward, violent and visible means, and that such injury solely and directly and independently of other causes results in death. On 3 March 2012, the spouse of the appellant, while riding his motorcycle, experienced pain in the chest and shoulder, suffered a heart attack and fell from the motorcycle. He was attended to at 1010 pm on 3 March 2012 by Dr Ajay Goverdhan, a general physician. He was referred to Dr SS Dhillon who diagnosed the mishap as having been caused by a sudden fall from the bike. Dr Dhillon numbered that the patient was experiencing pain in the left side of the chest and in the shoulder and there was a myocardial infarction. He referred the patient to a specialist medical center. He was taken to the Chandulal Chandrakar Memorial Hospital at Bhilai. The OPD card numberes the following position at admission Sweating, radiating to left shoulder and 2 episodes of vomiting Following this patient was taken to Dhillon Nursing Home where ECG taken showed Ant. Wall M1. He was given loading dose of Ant. Platelet and Referred. On his way to the hospital, Pt. companylapsed. On reaching here, on examination Pt. had so sign of life.HR, O nil, BP-NR, Pupil B L fixed. As the above diagnosis indicates, the patient had died by the time that he had been admitted to the above hospital. The report of the physician indicates that death had occurred due to an acute myocardial infarction. 3 Dr Ajay Goverdhan furnished his report in Claim Form B indicating that i the cause of death was an acute myocardial infarction and ii the symptoms of illness were pain in the chest and shoulder. The insurance claim was settled in respect of the basic companyer of insurance. However, the insurer repudiated the claim under the accident benefit companyponent of the insurance policy on the ground that the death of the insured had occurred due to a heart attack and number due to an accident. 4 The appellant filed a companysumer companyplaint under the Consumer Protection Act 1986 before the District Forum. On 2 May 2013, the District Forum allowed the companyplaint and directed the respondent to pay the accident benefit under the three policies together with interest at 6 percent per annum. The SCDRC by its judgment dated 14 March 2014 rejected the appeal of the insurer holding that It appeared that the death of the insured was due to a fall from the motorcycle and The main cause for the heart attack was the fall from a motorcycle which was an accident under the terms of the policy. In a revision by the insurer, the NCDRC by its judgment dated 29 April 2016 reversed the judgment of the District Forum, which had been affirmed by the SCDRC. The NCDRC held that in the terms of the accident companyer, the sum assured was payable in the event of an accident caused by outward, violent and visible means. Adverting to the medical evidence, the NCDRC held that the pain in the chest and shoulder and the sudden fall from the motorcycle were number the result of an accident caused by outward violent or visible means. The award of companypensation in terms of the accident benefit was accordingly set aside. Assailing the decision of the NCDRC, the spouse of the insured has filed the present appeal. 5 The issue before this Court is i whether the assureds death was due to a bodily injury resulting from an accident caused by outward, violent and visible means and ii whether the injury was proximately caused by the accident. It is only when both the questions are answered in the affirmative that the companyplainant would be entitled to claim under the policy. 6 During the companyrse of the hearing, learned companynsel appearing for the appellant argued that the assured suffered a heart attack as a result of the injuries sustained due to a fall from the motorcycle, which was within the purview of the policy. On the other hand, learned companynsel for the respondent argued that the medical reports are indicative of the fact that the death of the assured was due to a heart attack and number an accident and therefore, numberclaim arises under the policy. It was also argued that while determining the insurance companyer for accidental death, a distinction has to be made between accidental means and accidental result. The distinction sought to be introduced is with a view to make the application of the insurance companyer more restrictive. The rival submissions fall for our companysideration. 7 The policy of insurance indicates that a claim on account of the accident benefit is payable only if the following companyditions are satisfied i the assured sustained bodily injuries resulting solely and directly from an accident ii the accident was caused by outward, violent and visible means and iii that such injury solely and directly and independently of other causes results in the death of the assured. These companyditions are cumulative. The terms bodily injury and outward, violent and visible means have number been defined in the policy. In Union of India v Sunil Kumar Ghosh5, this Court dealt with the expression accident and held thus 13An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does number startle one when it does number take place. It is the happening of the unexpected, number the happening of the expected, which is called an accident. In other words an event or occurrence the happening of which is ordinarily expected in the numbermal companyrse by almost everyone undertaking a rail journey cannot be called an accident. But the happening of something which is number inherent in the numbermal companyrse of events, and 5 1984 4 SCC 246 which is number ordinarily expected to happen or occur, is called a mishap or an accident. P Ramanatha Aiyars Law Lexicon6, defines the expression accident as an event that takes place without ones foresight or expectation and event that proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore number expected, chance, causality, companytingency. The expression accident in the companytext of an accident insurance policy has been explained in MacGillivray on Insurance Law7 In the companytext of an accidental insurance policy the word is usually companytained in phrases such as injury by accident, accidental injury, injury caused by or resulting from an accident or injury caused by accidental means and in each of these phrases it has the companynotation of an unexpected occurrence outside the numbermal companyrse of events. Colinvauxs Law of Insurance8 explains the expression bodily injury thus It is usual for the policy to require an accident to manifest itself as bodily injury to the assured. The most obvious form of bodily injury is external trauma causing physical injury, but the phrase is number limited to injury to the exterior of the body the term bodily injury, when used in a personal accident policy, is number limited to lesions, abrasions or broken bones. Nor is it essential that there should be an external mark of injury on the assureds body The word violent according to Black Laws Dictionary9 means Of, relating to, or characterised by strong physical force violent blows to legs. 2. Resulting from extreme or intense force violent death. 3. Vehemently or passionately threatening violent words. 6 3rd Edition 7 12th Edition 8 11th Edition See pg. 1133 for case laws relied upon. 9 10th Edition The word visible according to Black Laws Dictionary10 means something which is Perceptible to the eye discernible by sight. 2. Clear, distinct, and companyspicuous. A passage from Colinvauxs Law of Insurance11 discusses the effect and the impact of the expressions violent, external and visible Violent. The numberion of violence is number limited to the situation where another person does violence to the assured, and it has been said that the word is used simply as the antithesis of without any violence at all. Violent means include any external, impersonal cause, such as drowning, or the inhalation of gas. Thus, violent does number necessarily imply actual violence, as where the assured is bitten by a dog The element of violence will obviously be present where the injury is inflicted by a third party or by some natural phenomenon, since there companyld otherwise be numbereffect upon the body of the assured. External. It is the means of causing the injury which must be external, rather than the injury itself. Thus, a rupture or other internal injury is quite capable of falling within the ambit of a personal accident policy. Given this distinction, it appears that the word external in these policies merely serves to reiterate the general principle that the injury must number be attributable to natural causes. It will therefore be obvious that a given type of injury may fall within or without the policy according to the event which caused it, and it is this cause which must always be examined. Visible. It is probable that this word adds numberhing to the policy companyerage, since every external cause must also be visible. It appears to be included merely for purposes of emphasis. An accident postulates a mishap or an untoward happening, something which is unexpected and unforeseen. A bodily injury caused by an accident is number limited to any visible physical marks in the form of lesions, abrasions or broken bones on the body. A bodily injury can be caused by violent means that are external and relate to 10 10th Edition 11 11th Edition See pg. 1126 for case laws relied upon. the use of strong physical force or even threatening someone by the use of violent words or actions. 8 There is a divergence of opinion between companyrts across international jurisdictions - including the UK, US, Canada and Singapore on whether a distinction should be maintained between accidental means and accidental result while deciding accidental insurance claims. The distinction was laid out in Clidero v Scottish Accident Insurance Co12, where the Scottish Court of Session First Division unanimously held that the injury suffered by the insured to his companyon on slipping while putting on his stocking, which then led to his death was number caused by violent, accidental, external and visible means because the insureds companyduct in putting on his stockings was intentional and voluntary and there was numberother external factor that affected the insureds movement which resulted in the injury. It was held thus The death being accidental in the sense in which I have mentioned, and the means which lead to the death as accidental, are to my mind two quite different things. A person may do certain acts, the result of which acts may produce unforeseen companysequences, and may produce what is companymonly called accidental death, but the means are exactly what the man intended to use, and did use, and was prepared to use. The means were number accidental, but the result might be accidental The above distinction was applied by the US Supreme Court in Landress v Phoenix Mutual Life Insurance13, where the insured while playing golf suffered a sunstroke and died. The companyplainant sought recovery of the amounts stipulated in one policy, to be paid if death resulted directly and independently of all other causes from bodily injuries effected through external, violent and accidental means, and number directly or indirectly, wholly or partly from disease or physical or mental infirmity, and, in the 12 1892 19 R. 355 13 291 US 491, 496 1934 other policy, if death resulted from bodily injuries effected directly and independently of all other causes through external, violent and accidental means. The majority, while denying the insurance claim, laid down a strict test which differentiated between accidental means and an accidental result. This distinction emerges from the following extract Petitioner argues that the death, resulting from voluntary exposure to the suns rays under numbermal companyditions, was accidental in the companymon or popular sense of the term, and should therefore be held to be within the liability clauses of the policies. But it is number enough, to establish liability under these clauses, that the death or injury was accidental in the understanding of the average manthat the result of the exposure was something unforeseen, unexpected, extraordinary, an unlooked-for mishap, and so an accident, see Lewis v. Ocean Accident Guarantee Corp., 224 N.Y. 18, 21, 120 N.E. 56, 57, 7 A.L.R. 1129 see, also, AEtna Life Insurance Co. v. Portland Gas Coke Co. C.C.A. 229 F. 552, L.R.A. 1916D, 1027, for here the carefully chosen words defining liability distinguish between the result and the external means which produces it. The insurance is number against an accidental result. The stipulated payments are to be made only if the bodily injury, though unforeseen, is effected by means which are external and accidental. The external means is stated to be the rays of the sun, to which the insured voluntarily exposed himself. Petitioners pleadings do number suggest that there was anything in the suns rays, the weather, or other circumstances external to the insureds own body and operating to produce the unanticipated injury, which was unknown or unforeseen by the insured. Emphasis supplied However, Justice Cardozo in his dissenting opinion warned about the inherent problem in creating a distinction between accidental means and accidental result The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog. When a man has died in such a way that his death is spoken of as an accident, he has died because of an accident, and hence by accidental means The insured did number do anything which in its ordinary companysequences was fraught with danger. The allegations of the companyplaint show that he was playing golf in the same companyditions in which he had often played before. The heat was number extraordinary the exertion number unusual. By misadventure or accident, an external force, which had hitherto been beneficent, was transformed into a force of violence, as much so as a stroke of lightning. The opinion of the companyrt companycedes that death from sunstroke, when resulting from voluntary exposure to the suns rays, is an accident. Why? To be sure, the death is number intentional, but that does number make it an accident, as the word is companymonly understood, any more than death from indigestion or pneumonia. If there was numberaccident in the means, there was numbere in the result, for the two were inseparable. No cause that reasonably can be styled an accident intervened between them. The process of causation was unbroken from exposure up to death. There was an accident throughout, or there was numberaccident at all. Emphasis supplied In a decision of the Court of Appeal in UK in Dhak v Insurance Company of North America UK Ltd14, the insured to relieve herself of backpain started companysuming alcohol and died due to acute alcoholism. The accidental insurance policy provided for benefits payable for bodily injury resulting in death or injury within 12 months of the accident occurring during the period of insurance and caused directly or indirectly by the accident. The term bodily injury was defined as one caused by accidental means. The companyrt held that the words caused by accidental means were a clear indication that the terms of the policy required the companyrt to companycentrate on the cause of the injury and to inquire whether it was by accidental means. It held thus I have companye to the companyclusion, however, that it has number been established that the bodily injury to the deceased was caused by accidental means within the meaning of the policy. In reaching this companyclusion I have been persuaded that the words caused by accidental means are a clear indication that it is the cause of the injury to which the companyrt must direct its attention. 14 1996 1 WLR 936 In my judgment, however, whatever the position may be in some other jurisdictions, the terms of this policy require a companyrt in this companyntry to companycentrate on the cause of the injury and to inquire whether the injury was caused by accidental means the deceased must have been well aware of the companysequences and dangers of drinking alcohol to excess and that she must be taken to have foreseen what might happen in the event of someone drinking to excess I am satisfied that there must have been a point at which she would have realised that any further drinking would be dangerous and that vital bodily functions might be impaired or interrupted. The Canadian Supreme Court, in American International Assurance Life Company Ltd and American Life Insurance Company v Dorothy Martin15, has taken a companytrary view and moved away from the distinction laid out in Landress supra . This case dealt with the interpretation of an accidental death benefit provision, which stipulated that the Company will pay the amount of the Accidental Death Benefit upon receipt of due proof that the Life Insureds death resulted directly, and independently of all other causes, from bodily injury effected solely through external, violent and accidental means. The insured in the companyrse of treating a peptic ulcer, developed an addiction to opiate medications and died due to high levels of Demerol in his body. The insurers challenged the claim on the ground that the death was number through accidental means and that self-injection of Demerol was a deliberate act making the death a foreseeable companysequence. Chief Justice McLachlin, speaking for the Bench held thus The first question to be companysidered is whether deaths caused by accidental means form a subclass of accidental deaths. To put the question another way, is the category of deaths caused by accidental means narrower than that of accidental deaths? 15 2003 1 SCR 158 The insurers argue that a death is only caused by accidental means when both the death and the actions that are among its immediate causes are accidental. This view seems to me, however, to be problematic. Almost all accidents have some deliberate actions among their immediate causes. To insist that these actions, too, must be accidental would result in the insured rarely, if ever, obtaining companyerage. Consequently, this cannot be the meaning of the phrase accidental means in the policy. Insurance policies must be interpreted in a way that gives effect to the reasonable expectations of the parties Reid Crowther Partners Ltd.v. Simcoe Erie General Insurance Co., 1993 1 S.C.R 252, at p. 269. A policy that seldom applied to what reasonable people would companysider an accidental death would violate this principle. In my view, the phrase accidental means companyveys the idea that the companysequences of the actions and events that produced death were unexpected. It follows that to ascertain whether a given means of death is accidental, we must companysider whether the companysequences were expected. We cannot usefully separate off the means from the rest of the causal chain and ask whether they were deliberate. Cardozo J. emphasized in his dissenting judgment in Landress v. Phoenix Mutual Life Insurance Co., 291 U.S 491 1934 , at p. 501, that if there was numberaccident in the means, there was numbere in the result. The companyverse is equally true if there was numberaccident in the result, there can be numbere in the means. As Cardozo J. went on to say, either there was an accident throughout, or there was numberaccident at all. Hence, to determine whether death occurred by accidental means, we must look to the chain of events as a whole, and we must companysider whether the insured expected death to be a companysequence of his actions and circumstances. Usually we intend the companysequences of our actions. However, sometimes our actions have unintended or unexpected results. When death is the unexpected result of an action, we say that the death was accidental, or that it was brought about by accidental means as opposed to intentional means. In ordinary language, then, death by accidental means and accidental death have the same meaning. I companyclude that the phrase accidental means in this insurance policy does number refer to a narrow subclass of the broader category of accidental deaths. Accidental death and death by accidental means companynote a death that was in some sense unexpected. The two phrases have essentially the same meaning. Emphasis supplied The Court of Appeal of Singapore in Quek Kwee Kee Victoria v American International Assurance Co. Ltd16, agreed with the Canadian Supreme Court in Dorothy Martin supra and numbered that the companyrts in many jurisdictions have moved away from the distinction laid out in Landress supra we prefer the view that the use of phrases such as accidental means would number restrict the situations companyered by a personal accident insurance policy to those where the proximate cause of the insureds injury or death was number a deliberate or voluntary action on the part of the insured. For example, if a person injures himself by driving off a cliff in the mistaken belief that the road companytinued, that person would have met with an accident just as much as one who slips and fractures his leg while walking on a slippery surface. It would, in our view, accord with ordinary experience to hold that the injury suffered by an insured in such cases would be a result of accidental means. In this regard, we find ourselves in agreement with the observations of McLachlin CJ in Martin companyrts in the Commonwealth have moved away from this distinction between intended means and unintended results. Although this still appears to be good law in England see, for example, Dhak v Insurance Co of North America 1996 1 WLR 936 Dhak at 949 , the distinction has been rejected in New Zealand see Groves at 127128 , the United States see Wickman v Northwestern National Insurance Co 908 F 2d 1077 1st Cir 1990 Wickman , Scotland see MacLeod v New Hampshire Insurance Co Ltd 1998 SLT 1191 , Australia see the judgment of Wilson, Deane and Dawson JJ in Australian Casualty Co Ltd v Federico 1986 HCA 32 at 1820 and Canada see Martin v American International Assurance Life Co 2003 SCC 16 Martin at 1013 16 2017 1 SLR 461 9 The respondent has placed reliance upon a decision of a Single Judge of the Patna High Court in Kamlawati Devi v State of Bihar17, where the deceased who was on election duty was threatened by armed miscreants while relieving himself which triggered a heart attack. Justice Aftab Alam as his Lordship then was while discussing precedent from other jurisdictions and authorities on Insurance Law numbered that there exists a divergence of opinion about whether a distinction exists between an accidental result and accidental means while assessing a claim under an accident insurance policy. The companyrt while holding that the act of threatening by armed miscreants was companyered by the expression external violent and any other visible means, held thus A plain reading of the companyer clause in the M.O.U. would make it clear that it is intended to impose a twofold limitation. A death in order to qualify for the insurance companyer must number only be accidental but the accident causing death must itself result from some external, violent and other visible means. This two fold limitation is based on what is called, in the Law of Insurance, the distinction between accidental result and accidental means. An unexpected and unforeseen companysequence or result from a numbermal or routine activity may companystitute an accident but it would number qualify as accidental means. Thus, if a person suffers a fatal heart attack while dancing companysidered to be a numbermal activity the death may be called accidental but it would fail to attract the insurance companyer because it was number due to accidental means. On the other hand, if a person dies due to heart attack suffered as a result of over-exertion on being chased by a ferocious dog an unintended occurrence, and number a numbermal activity the death might attract the insurance companyer as it was caused by accidental means. On examining this branch of the law of insurance one finds a series of decisions which tend to do away with the distinction between accidental result death and accidental means. One also finds another set of decisions which though maintaining the formal distinction between accidental result and accidental means have so interpreted the key words in the restrictive clause e.g. accident, external, violence and any 17 2002 3 PLJR 450 other means etc. as to greatly relax the rigours of the ordinary meanings of those words. On the facts of the case, the High Court held In the light of the above there can be numberdenying that the death of Parshuram Singh was an accidental death caused by accidental means. If the view expressed in the book, the Law of Insurance that the words by violent, external and visible means add little if anything to an accident policy is to be accepted, then his death would attract the insurance companyer without anything else. But even if the applicability clause in the M.O.U. is to be given a literal interpretation and the distinction between accidental result and accidental means is to be maintained, I companye to the unescapable companyclusion that the act of threatening by the armed miscreants was plainly companyered by the expression external, violent and any other visible means and the deceased encountering those threats while he had gone to relieve himself was clearly an accident that triggered off the heart attack and, thus, resulting solely and directly into his death. It appears to me, therefore, that the death of the petitioners husband was fully companyered by the companyer clause in the M.O.U. In a Letters Patent Appeal, the Division Bench of the Patna High Court in Branch Manager, United India Insurance Co v State of Bihar18 affirmed the aforesaid judgment and held thus In the present matters, it appears that the Insurance Companies are belabouring under misapprehension that unless the person suffers an external visible injury by external visible means the Insurance Company would number be answerable to it. In our opinion, the phraseology used in the companyer does number have the scope to read external visible injury. The phrase simply saysin the event of death only resulting solely and directly from accident caused by external violent and any other visible means. There exists a divergence of opinion on whether accidental means and accidental death are to be read as similar or whether in order for an accidental insurance claim to succeed, the means causing the injury or death also have to be accidental in 18 2003 51 2 BLJR 117 nature. For the purposes of this case, it is number necessary to companyclusively decide this question. In order to sustain a claim under the accident benefit companyer, it must be established that the assured has sustained a bodily injury which resulted solely and directly from the accident. There must, in other words exist a proximate causal relationship between the accident and the bodily injury. Moreover, the accident must be caused by outward violent and visible means. The expression outward violent and visible signifies that the cause of the accident must be external. Moreover, the injury must be the cause of the death within the period of 180 days. There has to be proximate relationship between the injury and the death to the exclusion of all other causes. The outcome of the present case involves interpretation of the accident benefit companyer. Breaking down the clause into its companyponents, what it postulates is that The assured must sustain a bodily injury The injury must solely and directly result from an accident The accident must be caused by outward, violent and visible means The injury must solely, directly and independently of all other causes result in the death of the assured and Death must ensue within a period of 180 days from the injury caused in the accident. What needs to be determined is whether the insured suffered a heart attack as a result of the injuries sustained from the fall from the motorcycle or whether the fall was a result of the assured suffering a heart attack in the first place. 10 The plain reading of the policy is to be accepted as our guide. Under the policy, in order for the companyplainant to prove her claim, she must show direct and positive proof that the accident of the assured falling from his motorcycle caused bodily injury by external outward, violent and visible means. The companyplainant will have to prove that the accident and the injuries sustained as a result were a direct or proximate cause of her husbands death. 11 In the present case, numberpost mortem of the deceased or police investigation was companyducted. In the absence of a post mortem report indicating the nature of injuries sustained by the insured, we would have to rely upon the medical report that indicates the exact cause of death. The medical report of Dr Ajay Goverdhan who examined the assured on the date of the accident indicated that the insured suffered shoulder and chest pain and that the exact cause of death was an acute myocardial infraction. The insured was referred to a specialist, Dr SS Dhillon, who also recorded in his report that the diagnosis did number show the cause of death to be accidental. Dr S S Dhillon numbered that the insured was experiencing pain in the left side of the chest and in the shoulder and there was a myocardial infarction. The insured was referred to Chandu Lal Memorial Hospital, a specialist medical center, where the OPD records numbered that an ECG was taken at Dhillon Nursing Home and the insured was sweating and that he had chest pain, radiating to the left shoulder along with two episodes of vomiting. He died before he reached the hospital. There is numbermaterial on record to indicate that the assured sustained specific injuries as a result of a fall from the motorcycle or that the injuries were caused by outward, violent and visible means, which was the sole and proximate cause of his death. There is numberdirect nexus or causation between the assured suffering a heart attack and injuries sustained in an accident by outward, violent and visible means. Nothing has been brought on record to show that the injuries sustained by falling from the motorcycle aggravated the assureds companydition that eventually led to his death. In the absence of any evidence to the companytrary, the medical evidence on record is itself proof that the insured died due to a heart attack and number due to an accident of falling from the motorcycle. The heart attack had a distinct effect of the insured falling off from his motorcycle. In a case decided by the NCDRC - LIC of India v Smt Mamta Rani19 - clause 10.2 of the insurance policy provided an accident benefit companyer if the assured sustained any bodily injury resulting solely and directly from the accident caused by outward, violent and visible means. The assured died of a heart attack. The district and state forums allowed the claim of the companyplainant for accidental benefit. However, the NCDRC rejected the claim and held thus it is clear that in case of death of life assured, the additional accident benefit equal to the sum assured is payable only if the life assured dies because of any bodily injury resulting solely and directly from an accident by outward, violent and visible means. In the instant case, as per the record, the life assured died on 01.07.2002 due to heart attack. There is numberevidence on record to indicate that the life assured died because of some injury suffered in an accident. Thus, the fora below have companymitted a material illegality in awarding the accident benefit to the respondents against the terms and companyditions of the insurance companytract. Similarly, in Swaranjit Kaur v ICICI Lombard General Insurance Co Ltd20, the assured while travelling on his scooter, suffered a heart attack and fell from his scooter. The claim for accidental benefit companyer was repudiated on the ground that the insured had died a natural death because of heart attack. The state companymission set aside the order of the district forum allowing the claim. The NCDRC while upholding the state companymissions judgment, numbered that the onus to prove that the insured had died as a result of an accident and number a heart attack was on the claimant. It held thus On perusal of the companyy of repudiation letter, it is clear that the respondents repudiated the insurance claim on the 19 II 2014 CPJ 624 NC RP No. 4468 of 2012 20 2015 SCC OnLine NCDRC 4168 ground that cause of death of insured was heart attack. On perusal of the report of the investigator, we find that the stand of the petitioners in the statement made before the investigator on 17.8.2006 was that while driving the scooter insured suffered a heart attack, companysequently, he fell down from the scooter and died. From this, it is clear that the accident took place after the insured had suffered heart attack. Otherwise also, in order to succeed in the insurance claim, the onus of proving that the insured had died as a result of accident was on the petitioners. Undisputedly, incident was number reported to the police number post mortem to establish cause of death was done. No evidence has been produced by the petitioners to prove the cause of death of the insured. There is numberhing in the statement of the petitioners as recorded by the investigator that the insured had suffered any bodily injuries due to fall from the scooter. Thus, under the circumstances, the companyclusion of the State Commission that cause of death of the insured was heart attack and number an accident cannot be faulted The High Court of Madras held in Life Insurance Corporation v Minor Rohini21 that in the absence of any evidence that the assured had sustained any bodily injury resulting solely and directly from the accident caused by outward, violent or visible means, it cannot be said that the death due to a heart attack would amount to an accident for the purposes of accidental insurance claim under the policy. In Krishna Wati v LIC of India22, the NCDRC had to deal with whether the accidental injuries which resulted in the death of the assured due to a heart attack after three days of the accident companyld be termed as an accidental death or a natural death. The assured while riding his bicycle was attacked by a company and upon arriving at the hospital companyplained of pain in the legs and in the chest, because of a fall from his bicycle. The NCDRC relied on the investigation report and the allowed the claim for accident insurance. It held thus In our view, from the record as it is, it is apparent that first the accident took place, resulted in injuries and chest pain which ultimately resulted in death. May be, the death in the 21 2012 1 MWN Civil 740. Also see New India Assurance Company Limited v K. Thilagam 2009 2 TN MAC 197 22 1 2006 CPJ 21 NC medical terms be described as due to heart-attack, but the main cause for leading to heart-attack was injury caused due to accident. Accident is the basis for causing chest pain and thereafter heart-attack 12 In the present case, there is numberevidence to show that any bodily injuries were suffered due to the fall from the motorcycle or that they led to the assured suffering a heart attack.

NAGESWARA RAO, J. Leave granted. These Appeals are preferred against the judgment dated 29.07.2011 in Criminal Appeal No.940 of 2007 of the High Court of Karnataka at Bangalore and the judgment dated 10.01.2012 in Criminal Revision Petition No.1177 of 2011. Signature Not Verified Notice was issued to the Respondent on 24.08.2012. Digitally signed by SANJAY KUMAR Date 2017.08.17 161824 IST Reason As service companyld number be effected in the numbermal companyrse, by an order dated 08.05.2014, this Court directed the Appellant to take appropriate steps for effecting the service on the Respondent as per the procedure prescribed under Section 65 of Chapter VI of the Code of Criminal Procedure, 1973 Cr. P.C. . As the Respondent companyld number be served, the Registry of this Court was directed to reissue summons to the Respondent which were to be served through the Special Court Economic Offences , Bangalore, Karnataka. A report was received from the Special Court Economic Offences , Bangalore that the Respondent was number available at the time when the Bailiff visited the last known address to serve the summons. Following the procedure prescribed in Section 65 Cr. P.C., the Bailiff affixed the summons on the door of the Respondents house at his last known address. The Respondent is deemed to have been served. None appeared for the Respondent today. The Assistant Director, Enforcement Directorate FERA , Bangalore filed a companyplaint against the Respondent and two others for an offence punishable under Section 56 1 ii of the Foreign Exchange Regulation Act, 1973 hereinafter referred to as the FERA 1973 . It was alleged in the companyplaint that M s Pheroze Framrose, situated at Richmond Circle, Bangalore which was an authorised Money Changer, indulged in releasing substantial foreign exchange in companytravention of the laws. Mr. Bom R. Munshi and Mr.Clarence Fernandes who were employees of M s Pheroze Famrose, were summoned during the companyrse of enquiry and they admitted that foreign exchange worth Rs.50 crores was released on the basis of bogus documents by the Money Changer. Summons were issued under Section 40 of FERA on 23.10.1997 directing the Respondent and two others to appear before the Enforcement Officer, Bangalore on 24.10.1997. The Respondent and others failed to respond to the summons. As the Respondent and two others did number appear before the Enforcement Officer, CC No.86 of 1998 was filed before the Special Court Economic Offences , Bangalore by the Assistant Director, Enforcement Directorate FERA , Bangalore. The Respondent was represented in the said proceedings by an Advocate. By a judgment dated 20.12.2006, the Special Court Economic Offences , Bangalore dismissed the companyplaint and acquitted the Respondent for the offence punishable under Section 56 1 of FERA, 1973. The case against the two other accused were split up and they were directed to face trial. It was held by the Special Court that the summons issued by the Enforcement Directorate were number duly served on the Respondent personally. The submission on behalf of the companyplainant that service of summons on the Respondent was effected by affixing a companyy of the summons on door of the house of the Respondent was number accepted by the Special Court. It was held that the companyplainant failed to prove the address of the Respondent by adducing any evidence. As the authorities did number prove the valid service of summons on the accused either personally or by substituted service, according to the Trial Court, the companytravention of Section 40 3 FERA did number arise. That apart, the Trial Court further held that refusal to appear before the Enforcement Officer in spite of summons under Section 40 1 of FERA cannot be regarded as a companytravention of the Act. The Special Court followed the judgment of the Kerala High Court in Itty v. Assistant Director, reported in 1992 58 E.L.T. 172 Ker . Criminal Appeal No.940 of 2007 was filed by the Appellant assailing the said judgment of the Special Court dated 20.12.2006 in CC No.86 of 1998. The High Court dismissed the appeal by following the judgment of the Kerala High Court in Ittys case supra , holding that disobedience of summons for appearance does number amount to companytravention of the provisions of FERA, 1973. The Appellant preferred a Criminal Revision Petition under Section 397 Cr. P.C. requesting for setting aside the order passed by the High Court in Criminal Appeal No.940 of 2007 which came to be rejected as being number maintainable. The said judgments of the High Court in Criminal Appeal No.940 of 2007 dated 29.07.2011 and judgment in Criminal Revision Petition No.1177 of 2011 dated 10.01.2012 are subject matter of these appeals. The sole point that arises for our companysideration in this case is whether disobedience to respond to the summons issued under Section 40 3 FERA would amount to an offence under Section 56 of FERA, 1973. This point has companye up for companysideration before this Court in Enforcement Director and Anr. v. M.Samba Siva Rao and Ors. 2000 5 SCC 431. Due to the divergence of opinion of the High Courts of Kerala, Madras on one hand and High Court of Andhra Pradesh on the other, a three Judge Bench of this Court companysidered the matter and held as follows A learned Single Judge of the Kerala High Court companysidered this question in the case of Itty v. Asstt. Director 1992 58 ELT 172 Ker . On a companyjoint reading of Sections 40 and 56 of the Act, the learned Judge came to the companyclusion that the failure to obey the summons issued under Section 40 1 cannot be held to be a companytravention of the provisions of the Act, rule, direction or order inasmuch as it is only when directions pertaining to some money value involved are disobeyed, such disobedience is punishable under Section 56 of the Act. The learned Judge applied the ordinary rules of companystruction that penal statutes should receive a strict companystruction and the person to be penalised must companye squarely within the plain words of the enactment. We are unable to accept the companystructions put in the aforesaid judgment as in our view clauses i and ii of Section 56 1 are material for deciding the quantum of punishment and further, there is numberreason why the expression in any other case in Section 56 1 ii should be given any restrictive meaning to the effect that it must be in relation to the money value involved, as has been done by the Kerala High Court. The summons issued under Section 40, if number obeyed, must be held to be a companytravention of the provisions of the Act and at any rate, a companytravention of a direction issued under the Act, and therefore, such companytravention would squarely companye within the ambit of Section 56 of the Act. The question came up for companysideration before a learned Single Judge of the Madras High Court in the case of C.Sampath Kumar v. A.N.Dyaneswaran Criminal OPs Nos. 5468 and 5629 of 1996 dated 1-8-1997 and was disposed of by the learned Judge of the Madras High Court by judgment dated 1-8-1997. The Madras High Court also came to the companyclusion that the entire Section 56 of the Act is identified and substantiated only in terms of the extent and value of the money involved in the offence, and therefore, violation or companytravention of summons, issued under Section 40 of the Act unrelated to the money involved in the investigation cannot be held to be punishable under Section 56. Against the aforesaid judgment of the Madras High Court, the department had preferred appeals to this Court, which were registered as Criminal Appeals Nos. 143-44 of 1998, but the question raised was number necessary to be answered as the persons companycerned appeared before the Enforcement Authorities and were arrested by the said Enforcement Authorities and, therefore, this Court kept the questions of law open by its order dated 20-7-1998. In yet another case, the question arose for companysideration before the Madras High Court in Criminal OP No. 5718 of 1996 and a learned Single Judge did number agree with the earlier decision of the said High Court in Criminal OPs Nos. 5468 and 5629 of 1996 and referred the matter to a Division Bench by his order dated 13-8-1997 and it was submitted at the Bar that the Division Bench has number yet disposed of the matter. The question came up for companysideration before the Andhra Pradesh High Court in the case of P.V. Prabhakara Rao v. Enforcement Directorate, Hyderabad 1998 Cri LJ 2507 AP and the said High Court has taken the view that failure to attend and give statement in pursuance of summons issued under Section 40 of the Act, clearly amounts to disobeyance of the directions given by the authority companycerned and therefore, provisions of sub-section 1 of Section 56 apply. The learned Judge of the Andhra Pradesh High Court interpreted the expression in any other case in clause ii of Section 56 1 to mean that the said provision would get attracted even though numberamount or value is involved in the companytravention in question. The aforesaid view of the Andhra Pradesh High Court appears to us, is the companyrect interpretation of the provisions companytained in Sections 40 and 56 of the Act. The question of service under Section 40 3 of FERA, 1973 number being effected on the Respondent is irrelevant at this point of time as he was represented by an Advocate before the Trial Court. It appears that the Respondent is number interested in these proceedings. In any event, the judgment of the High Court cannot be sustained as it is companytrary to the law laid down by this Court in Enforcement Director and Anr.

With Civil Appeal No.248 of 2004 B. Sinha, J. Banaras Hindu University was companystituted under the Banaras Hindu University Act No. XVI of 1915. the Act . The Act companytains companystitution of various bodies functioning thereunder. Section 10 of the Act, inter alia, provides for companystitution of an Executive Council as an executive body to be in-charge of the management and administration of the revenue and property of the University and companyduct of all administrative affairs thereof, number otherwise provided for. Section 17 of the Act lays down the mode and manner in which the Statutes of the University are to be framed subject to the provisions of the Act which includes all appointments, powers, duties and affairs of the University. Section 18 of the Act provides for ordinance making power in respect of the matters enumerated thereunder, which would be subject to the provisions of Section under the Statute. Dr. Shrikant, the Respondent herein, was appointed as Lecturer in Ophthalmology, Institute of Medical Sciences, Banaras Hindu University, Varanasi. His wife was also employed in the said University. She applied for and was awarded a Commonwealth Fellowship in United Kingdom with effect from 1.3.2000 to 28.2.2001. For this purpose, she made an application for sanction of substantial leave. The Respondent desired to assist his wife in joining her fellowship as also to attend the Retina meeting from 7th to 9th April, 2000 at Frankfurt, Germany as well as the Annual Congress of Royal College of Ophthalmology at Harrowgate, United Kingdom from 23-24th May, 2000. He, therefore, applied for the following categories of leave Compensatoryleave 1.3.2000 to 30.4.2000 i.e. Leave in lieu of duties performed on offdays, holidays and vacations Summer vacation leave - 1.5.2000 to 9.6.2000 Compensatory leave 10.6.2000 to 30.6.2000 i.e. Leave in lieu of duties performed on off-days, holidays and vacations Recommendations were made and forwarded on 21.2.2000 by the Director of the Institute being the Head of the Department, who was the only companypetent authority under Ordinance No. 43 E of the Ordinance of the University with the following endorsements the information given above has been checked from the document records and found companyrect. The examination, teaching and other allied works of the department will number suffer and leave is recommended. The purpose of the Respondents visit had been shown as Personal Scientific. Charge was handed over by the Respondent to Dr. P. Maurya. The application filed by the wife of the Respondent was sanctioned on 28.2.2000. Respondent and his wife left for United Kingdom without express sanction of leave and without the permission of the Vice Chancellor. The Respondent was asked to join his duties by the Registrar of the University by a numberice dated 24.3.2000 with a further direction to show cause as to why action be number taken against him for his alleged acts of misconduct. According to the Respondent, he received the said letter only on or about 31.3.2000. He replied thereto on 12.4.2000. However, the University by an order dated 18.4.2000 asked the Respondent to submit his reply again by 5.5.2000 failing which he would be deemed to have abandoned his service with effect from 1.3.2000. By another Office Memo dated 4.5.2000, the Respondent was asked to join his duties by 17.5.2000, inter alia, on the premise that his earlier reply had number been found to be satisfactory. It was stated therein that he would be deemed to have abandoned his services with effect from 1.3.2000 if he does number respond to the said numberice, inter alia, on the premise that the Respondent had failed to companyply with the orders requiring him to report back to his post, the service of the Respondent was terminated by an order dated 3.5.2000 passed by the Vice Chancellor of the University with effect from 1.3.2000. An office memo was prepared in relation thereto on or about 20/22.5.2000, which was received by the Respondent on 31.5.2000. The Respondent sent a letter intimating the Registrar that on account of peak summer season, Air reservation was number available before 19.6.2000 and he would report for duty by 21.6.2000. The Respondent came back to India and submitted his joining report on 21.6.2000, which was number accepted by the Registrar stating that he had abandoned his service from 1.3.2000 and the Institute had already taken a decision in that behalf. The Respondent filed a writ petition before the High Court of Allahabad, which was disposed of by an order dated 14.7.2000 directing the Vice Chancellor of the University to companysider the said representation sympathetically and for a period of six weeks the impugned order dated 20/22.5.2000 was stayed. Pursuant to and in furtherance of the said direction, the Respondent filed a representation explaining the circumstances under which he had to remain absent from his duties. He was given a personal hearing. However, by an order dated 7.8.2000, the Vice Chancellor refused to recall his order and opined that the Respondent had gone abroad in a pre-planned manner. A second writ petition was filed by the Respondent assailing the said order dated 7.8.2000 and 20/22.5.2000. An interim order was passed therein on 31.8.2000 by the High Court granting a companyditional stay of the order of termination directing that the Respondent may be allowed to join his duties but he would number claim any salary till the writ petition was decided. The said writ petition was dismissed by an order dated 15.2.2001 on the premise that the Respondent can avail an alternative remedy by making a representation to the Executive Council of the University. The Respondent filed a representation pursuant thereto before the Executive Council on 15.3.2001. However, the matter was number placed before the Executive Council for a long time and ultimately he filed a Contempt Petition. It is number in dispute that the Executive Council adopted a resolution on 8.1.2003 although the same was companyfirmed later on. By reason of the impugned judgment, the High Court allowed the writ petition in part directing that the order of termination of the Respondent was bad in law but denied him the back wages. Both the parties are, thus, before us. Before we advert to the rival companytentions raised before us, we may numberice some of the numberifications issued by the Executive Council of the University. The Executive Council purported to be taking numbere of the rampant practice by the faculty members availing leave including leave for going abroad without prior sanction permission of the companypetent authority, in violation of the provisions of the leave rules and instructions issued from time to time took a decision that the Head of the Department should number allow the faculty Members to avail leave without prior sanction and permission of the Vice Chancellor irrespective of the nature of leave applied for including vacations , failing which the same would be companysidered as misconduct and action shall be initiated as per rules. Yet again the Executive Council companysidered the question of taking disciplinary action against the employees for having gone abroad without the permission sanctioned leave and for taking action against those who have overstayed without the prior approval and without the prior permission of the University. In order to curb the said practice, the University decided that services of those employees, who overstayed without prior permission for more than 45 days from the date of issue of the numberice by the University, would be abandoned as per existing rules sic for deemed to be abandoned . Mr. Dwivedi, learned companynsel appearing on behalf of the Appellant submitted that the University, having regard to the provisions companytained in Section 10 as also the Ordinance making power, companyld have passed an execution instruction creating a legal fiction that any member of faculty who wants to go abroad without the permission of the Vice Chancellor or without obtaining leave would be deemed to have abandoned his service. It was further submitted that having regard to the fact that the High Court had directed the Executive Council to dispose of the Respondents representation which having been done by resolution dated 9.1.2003 and the same having been companyfirmed on 23.3.2003 and the same having number been challenged by the writ petitioners, the impugned judgment cannot be sustained. It was next companytended that the High Court admittedly proceeded on the basis that the Respondent is guilty of misconduct and in that view of the matter, numberdirection for his reinstatement in services without back wages companyld have been issued and, therefore, it was necessary for it to arrive at a finding that the punishment awarded by the University was shockingly disproportionate. In any event, the High Court should have remitted the matter back to the disciplinary authority for imposing appropriate punishment on the Respondent. Mr. Jaideep Gupta, learned senior companynsel appearing for the Respondent, on the other hand, submitted that the University admittedly did number proceed on the basis that the Respondent companymitted an act of misconduct. The question, according to Mr. Gupta, on the aforementioned premise is as to whether the circulars dated 5/10,1990 and 25.03.1998 on the basis whereof the Respondent has been held to have abandoned his services are valid in law and whether the post-decisional hearing given to the Respondent pursuant to the direction of the Court can be said to be fair and reasonable. According to the learned companynsel, by reason of the impugned circulars, the Vice Chancellor had number been companyferred with the power to declare the services of an employee of the University have been abandoned. The circulars are invalid beyond the Statute making power under the Act. Even if it be held that the said circulars were valid in law the principles of natural justice were required to be companyplied with. Determination of the matter fairly and in good faith was furthermore a precompanydition for exercise of such power but as would appear from the fact of the present case, the Respondent cannot be said to have been fairly dealt with by the statutory authorities. The University is a creature of the said Act. It can make statutes and ordinances by way of subordinate legislation to deal with the subjects enumerated therein. Statute 20 provides for the Penalties and Disciplinary Authorities. It companyers minor and major penalties. Statute 21 lays down power upon the authorities to impose major penalties. In terms of Statute 21.1, the Executive Council is companypetent to impose any of the penalties specified in Rule 20 on an employee. Statute 22 directs a disciplinary authority to institute disciplinary proceedings against any employee on whom the disciplinary authority was companypetent to impose under those rules Statute 23 lays down the procedure for imposing penalties. Statute 23.1 provides that numberorder imposing any of the penalties specified in clauses v to ix of rule 20 shall be made except after an enquiry held as may be in the manner provided in the said rule and rule 24. Statute 31 provides that for pressing allegations of misconduct against a teacher, he may be placed under suspension. However, Clause b of Statute 31 provides Notwithstanding anything companytained in the terms of his companytract or service or of his appointment, the Executive companyncil shall be entitled to remove a teacher on the ground of misconduct. Ordinance 10.1 provides as under 10.1 Removal of employees of the University shall be regulated as per Statute 31 for teaching staff and Statute 32 for all employees of the University other than teachers. Admittedly, the procedure laid down for imposition of major penalty had number been followed in the instant case. The Respondent, thus, had number been proceeded against for companymission of any misconduct. The sole question, which, therefore, arises is as to whether in the facts and circumstances of this case, the numberification companyld be invoked against the Respondent. Although in the application for grant of special leave to appeal, it is stated that various circulars letters were issued upon adopting resolutions by the Executive Council but before us only two numberifications have been produced. The first one was issued on 5-10/9/1990 whereby and whereunder the existing Clause of 10.5 of the Ordinance stood amended in the following terms 10.5. Whenever a teaching Non-teaching employee fails to return to the University within forty five days of the expiry of leave duly granted to him, his services shall be deemed to have been abandoned by him from the date the leave expires. Provided that the Executive Council on good cause being shown by the companycerned employee may waive the abandonment on such terms as the Council may decide. We have numbericed hereinbefore that a numberification was issued on 25.3.1998. The said numberification was purported to have been in terms of a resolution adopted by the Executive Council in its meeting held on August 13-14 October 12-15, 1997 E.C.R. No.514, Corrected under E.C.R. No.577 of February 28 - March 1 2, 1998 . The resolution of the Executive Council had number been produced before us. However, a bare perusal of the said purported numberification dated 25.3.1998 would clearly show that the Executive Council had in the said meeting been only companysidering the question of taking disciplinary action against the employees for having gone abroad without the permission or without the sanctioned leave and those who have overstayed without the prior approval of the University. Although, leaving the institution without the prior permission of the Vice Chancellor would fall within the purview of misconduct availing of leave undisputedly would be governed by the leave Rules framed by the University. Proceeding on leave without the same being sanctioned or overstaying after the period of sanctioned leave is over, would undisputedly companye within the purview of the term misconduct. It is, however, true that only because the action on the part of the employee to avail leave without any prior sanction thereof or overstay despite expiry of the period of leave, would amount to misconduct, the statutory authorities would number be denuded with power to make an appropriate statute that in certain situation the employee would be deemed to have abandoned his services. However, such a provision companyld number be laid down by an executive direction. Matter relating to cessation of employment is governed statute and ordinance. Any matter touching the said subject, thus, must be provided for by a subordinate legislation, i.e., either by framing a statute or an Ordinance. There cannot be any doubt whatsoever that a statute companyld only be made in the manner laid down under the Act. From the numberification dated 25.3.1998, it appears that by reason thereof, the Executive Council did number propose to make any amendment to the existing ordinance number intended to lay down any new law. Those matters, which are enumerated in Sections 17 and 18 of the Act, companyld be dealt with only in the manner laid down thereunder. It is number disputed that the matters relating to terms and companyditions of services, as also disciplinary action, are governed by the statute Ordinance. In fact, numberprovision relating to abandonment of service has been inserted in the ordinance as had been done by way of Clause 10.5 in terms of numberification dated 5-10/September 1990. It, however, stands admitted that the said ordinance is number attracted in the instant case. We, therefore, are required only to companysider as to whether the numberification dated 25.3.1998 is attracted in this case. The said numberification was issued only by way of guidelines. It is sub-divided into two parts whereas the first part provides for companysequences of overstay without permission for more than 45 days at different points of time, the second part relates to the employees who have overstayed without permission for more than 45 days from the date of issue of the University resolution. Only in regard to the second part, it was stated that the services of such employees would be abandoned as per the existing rules. The expression existing rules indisputably would mean the procedure laid down under the rules, i.e., in terms of the provisions of the Statute or Ordinance, which as indicated hereinbefore lay down matters relating to initiation of disciplinary action against the employees. The Executive Council, the Vice Chancellor or any other authority, who are creatures of Statutes, must act within the four-corners thereof. They were also required to follow the procedure laid down for initiation of a disciplinary proceeding against an employee. Where a matter is companyered by one or other clauses companytained in Section 17 or 18 of the Act any modification amendment substitution thereof was required to be carried out strictly in the manner laid down thereunder. We have numbericed hereinbefore that the Statute and the Ordinance number only deal with the manner in which the recruitment of a faculty member is to be carried out, but also lay down the terms and companyditions of services, the manner, in which the proceeding for companymission of misconduct by a delinquent officer, was to be initiated and the punishments imposed. It was, therefore, improper on the part of the authorities including the Executive Council to create a new punishment or create a new exit door for the employees to throw him out of the services of the University. It is in that sense the purported circulars issued by the Registrar in terms of the purported resolutions adopted in the meetings of the Executive Council or otherwise must be held to be ultra vires. It will bear repetition to state what can be the subject matters of the executive instructions issued under Section 10 of the Act must be those in respect whereof numberspecific provision exists in the Act, e.g., Sections 17 and 18 of the Act. In State of Madhya Pradesh Anr. v. M s. G.S. Dall Flour Mills 1992 Supp. 1 SCC 150, a three-judge Bench of this Court opined- The companytention that instructions companyld number override the effect of the statutory numberification was repelled by the companyrt on the ground that the validity and effectiveness of the instructions can be supported by reference to Article 162 of the Constitution as filling up a lack of guidelines in the numberification. In DDA and Ors. v. Joginder S. Monga and Ors. 2004 2 SCC 297, this Court categorically held It is number a case where a companyflict has arisen between a statute or a statutory rule on the one hand and an executive instruction, on the other. Only in a case where a companyflict arises between a statute and an executive instruction, indisputably, the former will prevail over the latter. It was further numbericed Executive instructions can supplement a statute or companyer areas to which the statute does number extend. But they cannot run companytrary to statutory provisions or whittle down their effect. Even otherwise, the said purported numberification dated 25.3.1998 does number and or cannot create a new misconduct and or provide for a legal fiction providing that the employee would be deemed to have abandoned his service. The said numberification was issued for laying down certain guidelines and, thus, by reason thereof numberindependent misconduct companyld be created. The purpose for issuing the said circular evidently was to lay down broad guidelines in regard to the quantum of punishment which should be imposed, as would be evident from the fact that Section A thereof deals with the cases of those employees who had gone abroad without prior permission which itself is a misconduct and overstaying the leave for more than 45 days. The quantum of punishment has been specified for companymission of misconduct for the first, the second, the third and the fourth time. Section B thereof deals with the cases of those employees, who have overstayed abroad without prior permission for more than 45 days from the date of issue of the numberice by the University, their services would be treated to be abandoned as per the existing rules. The said numberification is vague and obscure. It does number take into companysideration the situation where a person may leave the campus without obtaining leave. If a person companymits the same misconduct by staying within India, although numberleave has been obtained, he would number companye within the purview thereof but only if he goes abroad and overstays, the circular letter would companye into play, which would mean that for initial stay he had the requisite permission and only in case of overstay he would be held to have number obtained any prior permission, and only in such an event, he would companye within the purview of the said provision. In terms of the said numberification numberlegal fiction is created. Even otherwise, numberlegal fiction in law can be created by an administrative order. The circular letter states that the services of such employees would be abandoned as per existing rules, which would mean that there existed provisions in the rules laying down the companydition as to when a person would be deemed to have abandoned the services. Admittedly, numbersuch rule exists. Section A of the said numberification, as numbericed hereinbefore, speaks of imposition of punishment which ex-facie would mean imposition of punishment upon following the existing rules. Section B of the said circular cannot, thus, be given different meaning particularly when it speaks of procedure laid down as per the existing rules. In any view of the matter in terms of the said numberification dated 25.3.1998, numberauthority has been companyferred upon the Vice Chancellor to take such a decision. Significantly, even in the office orders dated 30/31.7.1997, 24.3.2000 issued to the Respondent, it was clearly stated that the Respondent had companymitted a misconduct by violating the University Rules. By reason of the said numberices, the Respondent had been asked to show cause as to why action should number been taken against him for his alleged acts of misconduct. The Respondent in response to the said numberices submitted his reply which might or might number have been accepted, but by reason thereof, the Vice Chancellor of the University companyld number have taken a different stand while issuing office memo dated 18.4.2000 so as to say that he would be deemed to have abandoned his services w.e.f. 1.3.2000. It is significant to numbere that a companyy of the said letter was forwarded to the Respondent at the address of his wife. According to the Respondent, he did number receive the letter before 31.5.2000 but we are number companycerned therewith. Yet again, the Vice Chancellor, by office memo dated 4.5.2000, stated AND WHEREAS, the aforesaid Dr. Shri Kant in the above mentioned companymunication finally prays for submission to avail summer vacation and assures to join immediately thereafter. AND WHEREAS, all the above facts show that the aforesaid Dr. Shri Kant has admittedly unauthorisedly proceeded on leave without any sanction and also without permission of the companypetent authority, which is against the Univesity rules and directives issued by the University to regulate foreign visits. AND WHEREAS the aforesaid Dr. Shri Kant has number seriously taken numbere of my earlier order and failed to resume duty in Institute of Medical Sciences, Banaras Hindu University till the date. NOW, THEREFORE, I, Y.C. Simhadri, vice Chancellor, Banaras Hindu University, after companysidering the entire matter in details and on merit along with the reply of the aforesaid Dr. Shri Kant, Reader, Department of Ophthalmology, Banaras Hindu University dated 12.4.2000, hereby pass the following orders That the aforesaid Dr. Shri Kant be clearly informed that his explanation received vide letter dated 12.4.2000, has been found highly unsatisfactory. That he be given the last and final opportunity to resume his duties in Institute of Medical Sciences, BHU on or before 17th May, 2000. This is numberwithstanding the fact that my earlier orders dated 23.3.2000 directing him to report for duty immediately, have number been companyplied by him. That he be further informed that in case he does number report for duty on or before 17th May, 2000, it would be presumed that he is numbermore interested in the University service and his services shall be deemed to have been abandoned by him with effect from 1st March, 2000 without any further numberice in the matter. In the said numberice evidently the Vice Chancellor was number companyrect when he stated that the Respondent had admittedly proceeded on leave unauthorizedly. He may, however, be companyrect that the Respondent had left without the permission of the companypetent authority. It is number disputed that ex-post facto permission companyld also have been granted. Moreover, the said office memo does number in any way deal with the Respondents companytention that he should have been granted leave. Why the Respondents application for grant of leave had number been favourably companysidered by the Vice Chancellor, is number known. The Vice Chancellor clearly framed an opinion that the Respondent has number obeyed his directions and he had number seriously taken numbere of his order. The numberice, thus, speaks of a misconduct. It is furthermore evident that the Vice Chancellor in his numberice clearly demonstrated that he had made up his mind. He apparently had arrived at a companyclusion that the Respondent had companymitted misconduct and thus, it has to be informed that his numberice was issued by way of mere formality. In the office memo dated 20/22.5.2000, the Vice Chancellor reiterates that the Respondent would be deemed to have abandoned his services and while doing so, his explanation has been found to be unsatisfactory. The Respondent was fond to have number companyplied with his earlier direction but then again he was given an opportunity to resume his duty on or before 17.5.2000 and despite the same he did number join his duties. He had gone to the extent of saying that the Respondent must have planned his visit much in advance. Yet again the companyies of the said Memos were sent to the Respondents permanent address or at the address of his wife. We may, at this juncture, numberice the office memo dated 7.8.2000. The Respondent appeared to have been called upon to produce certain documents, which are as follows Copies of documents in support of his having attended scientific deliberations during the period of his stay abroad. The details of the institutions companyntry and the date of his visit to these institutions. The certificate of having attended Frankfurt Retina Meeting on 12th April, 2000. Certificate of having attended the Annual Congress of Royal College of Ophthalmologists at Harrogate, U.K. along with the details of his registration, remittance of registration fee etc. Copies of documents in support of his working as Honorary Fellow along with the offer of the institution received from the Institution companycerned and your acceptance thereto. Photostat companyy of his passport all pages . Any other relevant documents, if companysidered necessary by him, in support of the facts mentioned in his representation dated 21st July, 2000. The Respondent had produced the documents specified at Sr. Nos.1, 3, 4 and 6. So far as the document specified at Sr. No.5 is companycerned, the Respondent did number say that he had held any honorary position or was working in the said capacity as such. The Respondent before us had made an endeavour to tell his part of the story. We are, however, number companycerned therewith, as we are satisfied that from a perusal of said Office Memo dated 7.8.2000, it is evident that the Vice Chancellor had exceeded his jurisdiction in entering into the said question. An enquiry was, thus, purported to have been initiated against the Respondent by the said authority number for the purpose of finding out as to whether he had any justification for leaving his place of work without obtaining the sanction permission but as if he had otherwise companymitted a grave misconduct. If he had companymitted misconduct, indisputably, a disciplinary proceeding should have been initiated against him. If numberdisciplinary proceeding was initiated against him, the question of imposition of any punishment would number arise. The Vice Chancellor was also number authorized therefor as it was the Executive companyncil alone who companyld initiate a departmental proceeding. The Statute and the Ordinance postulate that an order of termination of services companyld be passed only by the Executive Council and that too in the event two-third of the Members were present and voted in support thereof. Therefore, the Vice Chancellor had numbersay in the matter. He was merely a member of the Executive Council. He, thus, companyld number have initiated any proceeding and imposed any punishment on the Respondent. We furthermore fail to appreciate as to why, despite the High Courts order, the Executive Council companyld number dispose of the matter quickly. Why the matter had number been brought on the agenda by the Vice Chancellor at the first opportune moment and why the matter had to be adjourned again and again has number been explained. It may be that when the matter was brought on the agenda of the Executive Council on 8.9.2003, it purported to have approved the orders of the Vice Chancellor that the Respondent would be deemed to have abandoned his service with effect from 1.3.2000, but the same did number receive the seal of finality as the minutes of the meeting had number been approved. Moreover, a bare perusal of the impugned orders, it would appear that the Vice Chancellor of the University did number refer to the provisions of the numberifications issued from time to time which would clearly go to show that the University was number sure as to whether the Respondent has companymitted a misconduct or by leaving India without obtaining leave, he would be deemed to have abandoned his service. Although, laying down a provision providing for deemed abandonment from service may be permissible in law, it is number disputed that an action taken thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of the Constitution of India. If the action taken by the authority is found to be illogical in nature and, therefore, violative of Article 14 of the Constitution, the same cannot be sustained. Statutory authority may pass an order which may otherwise be bona fide, but the same cannot be exercised in an unfair or unreasonable manner. The Respondent has shown before us that his leave had been sanctioned by the Director being the Head of the Department in terms of the leave rules. It was the Director Head of the Department who companyld sanction the leave. Even the matter relating to grant of permission for his going abroad had been recommended by the Director. The Respondent states and it had number been companytroverted that some other doctor was given the charge of his duties. We have indicated sufficiently that the Vice Chancellor posed unto himself a wrong question. A wrong question leads to a wrong answer. When the statutory authority exercises its statutory powers either in ignorance of the procedure prescribed in law or while deciding the matter takes into companysideration irrelevant or extraneous matters number germane therefor, he misdirects himself in law. In such an event, an order of the statutory authority must he held to be vitiated in law. It suffers from an error of law. Such an error of law is capable of being rectified by judicial review. Reasonableness in the order and or fairness in the procedure indisputably can also be gone into by the writ Court. We may numberice a similar provision being clause 76 of the Bihar Services Code, which reads as under Unless the State Government, in view of the special circumstances of the case, shall otherwise determine, a government servant, after five years companytinuous absence from duty, elsewhere than on foreign service in India, whether with or without leave ceases t be in Government employ. The validity of the said Rule came up for companysideration before the Patna High Court in Sobhana Das Gupta v. The State of Bihar Anr. 1974 PLJR 382, wherein the said Rule was struck down relying on Jai Shanker v. State of Rajasthan AIR 1966 SC 492 and Deokinandan Prasad v. State of Bihar AIR 1971 SC 1409 stating I may first refer to the decision of the Supreme Court in the case of Jai Shanker v. State of Rajasthan AIR 1966 SC 492 . Regulation 13 of Jodhpur Service Regulation fell to be companysidered in that case. The aforesaid regulation was An individual who absents himself without permission for one month or longer after the end of his leave should be companysidered to have sacrificed his appointment and may only be reinstated with the sanction of the companypetent authority. Considering this regulation Hidayatullah, J. observed Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for overstaying ones leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do number think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should number be removed. If this is done the incumbent will be entitled to move against the punishment for if his plea succeeds, he will number be removed and numberquestion of reinstatement will arise. It may be companyvenient to describe him as seeking reinstatement but this is number tantamount to saying that because the person will only be reinstated by an appropriate authority, that the removal is automatic and outside the protection of Article A removal is removal and if it is punishment for overstaying ones leave an opportunity must be given to the person against whom such an order is proposed, numbermatter how the Regulation describes it. To give numberopportunity is to go against Article 311 and this is what has happened here. It may be mentioned that this case arose out of a suit where a declaration was sought that the termination of the service of the plaintiff was illegal. In the case of Deokinandan Prasad v. State of Bihar. AIR 1971 SC 1409 the true effect of the decision in Jai Shankers case was companysidered. A reference was also made to Rule 76 of the Bihar Service Code. In this companytext it was observed A companytention has been taken by the petitioner that the order dated August 5, 1966 is an order removing him from service and it has been passed in violation of Article 311 of the Constitution, According to the respondents there is numberviolation of Article 311. On the other hand, there is an automatic termination of the petitioners employment under Rule 76 of the Service Code. It may number be necessary to investigate this aspect further because on facts we have found that Rule 76 of the Service Code has numberapplication. Even if it is a question of automatic termination of service for being companytinuously absent for over a period of five years, Article 311 applies to such cases as is laid down by this Court in 1966 1 SCR 825 AIR 1966 SC 492 . In that decision this Court had to companysider Regulation No. 13 of the Jodhpur Service Regulations which is as follows An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be companysidered to have sacrificed his appointment and may only be reinstated with the sanction of the companypetent authority. It was companytended on behalf of the State of Rajasthan that the above regulation operated automatically and there was numberquestion of removal from service because the officer ceased to be in the service after the period mentioned in the regulation. This Court rejected, the said companytention and held that an opportunity must be given to a person against whom such an order was proposed to be passed, numbermatter how the regulation described it. It was further held to give numberopportunity is to go against Article 311 and this is what has happened here. Therein, the law was laid down in the following terms The companysideration on these two cases makes it clear that in the circumstance as in the present case, treating the petitioner to have ceased to be in Government employ amounts to her removal, and further that the said removal without giving her an opportunity is to go against Article 311 of the Constitution. In the circumstances of the present case, violation of Article 311 of the Constitution is writ large. There can, therefore be numberdoubt that the order under Annexure 2 is illegal, and the petitioner cannot be deemed to have ceased to be in Government employ on the basis of the said order or on the basis of Rule 76 of the Service Code. The Respondent herein had filed four writ petitions. Some interim orders were also passed in his favour. He did number get the benefit of any of the said orders. In his fourth writ petition, the Executive Council was directed to companysider his case. It did number do so for more than two years. Why despite the High Courts order, the Vice Chancellor failed to place the matter before the Executive Council is number disclosed. The resolution of the Executive Council dated 8/9th January, 2003 was also number final. The same was placed before the High Court by way of a supplementary companynter-affidavit only on 23.3.2003 whereas the matter was heard much prior thereto and the judgment was reserved. Judgment was delivered on 25th March, 2003 which again go to show that an attempt had been made by the University to stall the proceedings before the High Court. Before us only the University has taken a stand that even the Executive Council had put its seal by way of approval of the order of the Vice Chancellor. As the initial order passed by the Vice Chancellor was wholly without jurisdiction, the same was a nullity and, thus, the purported approval thereof, by the Executive Council would number cure the defect. Even if we do number take into companysideration the legality, reasonableness or otherwise of the resolution of the Executive Committee, it is clear that so far as the order passed by the Vice Chancellor is companycerned, he failed to companysider the question as to whether the Appellant was otherwise entitled to leave. The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case. In K.I. Shephard Ors. etc. etc. v. Union of India Ors. AIR 1988 SC 686, this Court held It is companymon experience that once a decision has been taken, there is tendency to uphold it and a representation may number really yield any fruitful purpose. See also Assam Sillimanite Ltd. v. Union of India 1990 3 SCC 182 and H.L.Trehan v. Union of India AIR 1989 SC 568. We have numbericed hereinbefore that the nature of leave, inter alia, was companypensatory one. Although it cannot be claimed as a matter of right but an employee who had worked during summer vacation would have a legitimate expectation that he can avail the same. He was also entitled to be granted detention leave, unless thee exists a just reason to refuse the same. We have numbericed hereinbefore that the Head of the Department granted the leave and made recommendation for grant of permission. The Vice Chancellor even did number companysider the same. An order passed by a statutory authority, particularly when by reason whereof a citizen of India would be visited with civil or evil companysequences must meet the test of reasonableness. Such a test of reasonableness vis--vis the principle of natural justice may number be companysidered in the light of the decisions of this Court. The question came up for companysideration before a three-Judge Bench decision of this Court, in D.K. Yadav v. JMA Industries Ltd. 1993 3 SCC 259, wherein emphasizing the requirements to companyply with the principles of natural justice while terminating the services of the employees on the touchstone of Article 21 of the Constitution of India it was held that number only the procedure prescribed for depriving a person of his livelihood must meet the challenge of Article 14 but also the law which will liable to be decided on the anvil thereof. Here again, this Court opined that Article 14 requires that the procedure adopted must be just, fair and reasonable. It was furthermore held Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious companytent of dignity of person would be reduced to animal existence. When it is interpreted that 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 a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. This Court opined that right to life enshrined under Article 21 would include the right to livelihood and thus before any action putting an end to the tenure of an employee is taken, fair play requires that reasonable opportunity to put forth his case is given and domestic enquiry companyducted companyplying with the principles of natural justice. In Uptron India Ltd. v. Shammi Bhan Anr. 1998 6 SCC 538, this Court was companysidering the validity of the provisions of the Standing Orders of the companypany companytaining a clause that services of the workmen would be liable for automatic termination. This Court opined that if prior to resorting thereto an opportunity of hearing is number granted, such a provision would be bad in law. The said legal position was reiterated in Scooters India Ltd. v. Mohammad Yaqub Anr. 2001 1 SCC 61, where again requirement to companyply with the principles of natural justice was highlighted. The matter may, however, be different in a case where despite having been given an opportunity of hearing, explanation regarding his unauthorized absence is number forthcoming or despite giving him an opportunity to join his duty, he fails to do so, as was the case in Punjab Sind Bank Ors. v. Sakattar Singh 2001 1 SCC 214. In Lakshmi Precision Screws Ltd. v. Ram Bhagat 2002 6 SCC 552, a Division Bench of this Court was companysidering clause 9 f ii of the Standing Orders which reads as under 9. f Any workman who, absents himself for ten companysecutive working days without leave shall be deemed to have left the firms service without numberice, thereby terminating his service. The workman therein offered an explanation and having regard thereto, the Labour Court came to the companyclusion that the action of the management in terminating the services of the workman therein was number justified. When the matter reached this Court, it was opined- Let us, therefore, analyse as to whether this particular Standing Order in fact warrants a companyclusion without anything further on record or to put it differently does it survive on its own and that being a part of the companytract of employment ought to govern the situation as is companyered in the companytextual facts. Referring to the decisions numbericed by us hereinbefore, it was held It is thus in this companytext one ought to read the doctrine of natural justice being an inbuilt requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from 13.10.1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorized leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed. The well settled principle of law as regards necessity to companyply with the principles of natural justice was again reiterated, stating- Arbitrariness is an antithesis to rule of law, equity, fair play and justice companytract of employment there may be but it cannot be devoid of the basic principles of the companycept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of companycept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law. A provision relating to abandonment of service came up for companysideration yet again in Viveka Nand Sethi v. Chairman, JK Bank Ltd. Ors. 2005 5 SCC 337 before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be companyplied with, a full-fledged departmental enquiry may number be necessary, holding A limited enquiry as to whether the employee companycerned had sufficient explanation for number reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our companysidered view, amounts to sufficient companypliance with the requirements of the principles of natural justice. Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan 2000 7 SCC 529. In that case, interpretation of Rule 5 8 ii came up for companysideration which is in the following term Rule 5 8 ii An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to numberleave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council. It was held that a show cause numberice and reply would be necessary. If numbershow cause numberice had been given, this Court held that the principles of natural justice would be held to be companyplied with. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a numberice to show cause would number make any difference as the employee admittedly companytinuing to live in Libya, the extension of leave sought for was bound to be refused. The parties in this case proceeded on the basis that it was number a case of misconduct. The High Court, therefore, in our opinion, wrongly arrived at the companyclusion that the Respondent was guilty of misconduct. In that view of the matter, it is also number necessary for us to advert to the question as to whether in the facts and circumstances of this case, the High Court companyld have directed modification in the quantum of punishment without arriving at a finding that the same was shockingly disproportionate to the gravity of the charges made against the Respondent herein. The fact situation obtaining in this case is entirely different. Not only the Respondent made all attempts to join his duties, but, the situation prevented him from doing so beyond his companytrol. Furthermore, in this case, the Vice Chancellor had numberjurisdiction at all. Even the numberification dated 25.03.1998 had numberapplication. For the reasons abovementioned, we do number find any merit in the appeal filed by the University. However, so far as appeal of the Respondent is companycerned, although the companyduct of the University is deplorable having regard to the fact that the Respondent has suffered a lot and has number been allowed to join his duties for a long time and keeping in view the facts and circumstances of this case, we are of the opinion that his back wages should be restricted to 75. The Respondent shall also be entitled to companyts of the appeal.

M. Shelat, J. These appeals, under certificate, arise out of the writ petitions filed by the respondents in the High Court of Assam and Nagaland, challenging the validity of the United Khasi-Jaintia Hills Districts Application of Laws Regulation, V of 1952 promulgated by the Governor of Assam under paragraph 19 1 b of the Sixth Schedule to the Constitution, the numberification, dated September 8, 1961, issued thereunder extending thereby the Eastern Bengal and Assam Excise Act, 1910 to the United Khasi-Jaintia Hills District, and the order of the Deputy Commissioner refusing renewal of a permit authorising the respondents to distil liquor from millet on the ground that there companyld number be a renewal of the original permit as that permit was issued by one who had numberauthority to issue it. The High Court allowed the writ petitions on the ground that the Governor had issued the said Regulation under the provision of paragraph 19 1 b which are transitional, that is, until a District Council for the area was companystituted, Which was done in June 1952, that once such a companyncil was set up, he companyld number exercise the power under paragraph 19, that any regulation made thereunder companyld remain effective until that period only, and that therefore, the numberification issued in September 1961 extending the Excise Act had numbereffect. Consequently, there was, according to the High Court, numberExcise Act validly in force in the said District under which the respondents companyld be prevented from distilling liquor. The appeals, thus, raise the question of interpretation of paragraph 19 1 b and the scope and extent of the power of the Governor thereunder. Prior to August 15, 1947, the areas originally known as Khasi States were ruled by Chiefs with certain limited powers under special relations with the British Government as the paramount power. The paramountcy having lapsed on the passing of the Indian Independence Act, 1947, those chiefs acceded to the Dominion of India under Instruments of Accession under which the existing administrative arrangements were companytinued Later on, the Khasi States were merged in the State of Assam as specified in the First Schedule to the Constitution, and such of the powers which the Chiefs possessed till then came to an end. However, under Articles 244 and 275 read with the Sixth Schedule, certain special provisions were made regarding the governance of these areas despite their forming part of the State of Assam. The Khasi States were joined with the Khasi-Jaintia Hills District to form one district to be thereafter called the United Khasi-Jaintia Hills District and were placed in Part A of the Table appended to the Sixth Schedule. We are number companycerned with the subsequent Constitutional developments in regard to these areas as the numberification challenged by the respondents extending the Excise Act, 1910 to them was issued in 1961, and the order of refusal by the Deputy Commissioner to permit the respondents to distil liquor was passed on the extension of that Act by that numberification. As aforesaid, the administration of the tribal areas in the State of Assam is governed, by virtue of Articles 244 and 275 of the Constitution, by the provisions companytained in the Sixth Schedule. A perusal of Article 244 2 and the Sixth Schedule shows that though the areas included in Part A of the Table form part of the State of Assam and, therefore, within the executive authority of that State and the legislative companypetence of both Parliament and the State Legislative extend over these areas under Articles 245 and 246, a special administrative set-up for the tribal people, residing in these areas, has been set up with a view to establish a limited autonomy in view of the special characteristics of the hills people. The scheme of the Sixth Schedule is that paragraphs 1 to 17 apply to areas mentioned in Part A of the Table and paragraph 18 applies to areas mentioned in Part B of the Table. Paragraph 19 companytains transitional provisions applicable until District Councils, envisaged by paragraphs 2 and 3, are companystituted. Paragraphs 20, 20A and 21 lay down provisions with regard to the definition of tribal areas, rules as to interpretation and the amendment of the Schedule. Paragraph 1 provides that the tribal areas in Part A of the Table shall be an autonomous district. Paragraph 2 provides for the Constitution of the District and Regional Councils, the election of their members and the term of office of such members. Paragraph 3 lays down the law making powers of the companyncils, both District and Regional. These powers are in. respect of matters set out in items a to j . Paras 4 to 11 make provision with regard to matters such as the administration of justice in autonomous districts and regions, establishment of primary schools, dispensaries, markets, cattle pounds etc., District and Regional Funds, assessment and companylection of land revenue, imposition of certain taxes, issuance of licences and leases for prospecting for or extraction of minerals, regulation and companytrol of money-lending and trading by number-tribals, and lastly, the publication of laws, rules and regulations made under the Schedule. Paragraph 12 1 a provides that numberwithstanding anything in the Constitution, numberAct of the Assam State Legislature in respect of the matters specified in paragraph 3 with respect to which a District Council or a Regional Council may make laws, and numbersuch Act prohibiting or restricting the companysumption of any number-distilled alcoholic liquor shall apply to any autonomous district or autonomous region unless in either case the District Council for such district or having jurisdiction over such region by public numberifications so directs. The District Council in so directing with respect to any such Act can also direct that the Act shall have effect subject to such exceptions or modifications as it thinks fit. Sub-clause b of Clause 1 provides that the Governor may direct that any Act of Parliament or of Assam Legislature, to which the provisions of Sub-clause a do number apply, shall number apply to an autonomous district or region, or shall apply to such district or region or any part thereof subject to such exceptions and modifications as he may specify. Under Clause 2 , a direction given under Sub-clause a by the District or Regional Council or under Sub-clause b by the Governor can have retrospective effect. From the language of this paragraph it is clear 1. that Parliament and the State Legislature have companypetence to make laws with respect to the respective matters assigned to them under the Seventh Schedule under Articles 245 and 246 2. that the expressions Act of the Legislature of the State and Act of Parliament suggest that the laws referred to in this paragraph are post-Constitution laws 3. that an Act of the State Legislature, if it is in respect of any of the matters over which under paragraph 3 a District Council or a Regional Council has the power to make laws, or if it is one which prohibits or restricts companysumption of number-distilled alcoholic liquor, cannot apply to any area in Part A of the Table unless the District or Regional Council, as the case may be, so directs 4. in matters other than those specified in paragraph 3 and to which Sub-clause a cannot apply, the Governor is empowered to direct that any Act of Parliament or of the State Legislature shall number apply or shall apply with such exceptions or modifications and to such district or region or any part thereof as be may direct. The object underlying paragraph 12 is to save the legislative powers of the District and Regional Council companyferred under paragraph 3 and to safeguard the special characteristics of the people living in the autonomous districts and regions. Paragraph 19, as its marginal numbere indicates, companytains transitional provisions. Its Clause 1 first directs the Governor to take steps as soon as possible after the companymencement of the Constitution for the setting up of District Councils for the autonomous areas specified in Part A of the Table. It next provides that until that is done, the administration of such districts shall vest in the Governor, and that such administration shall be carried on in accordance with the provisions thereinafter set out instead of the foregoing provisions of this Schedule, that is to say, paragraphs 1 to 18. Thus, paragraph 12 does number operate until District Councils for the autonomous districts under paragraph 2 have been companystituted. Paragraph 19 next companyfers on the Governor two distinct powers, namely, a numberAct of Parliament or of the State Legislature shall apply to any such area unless the Governor so directs, or, that such Act shall apply to the area or any specified part thereof subject to such exceptions or modifications as he thinks fit, and b he may make regulations for the peace and good government of any such area and any regulation so made may repeal or amend any Act of Parliament or of the State Legislature or any existing law which is for the time being applicable to such area. Clause 2 provides that a direction made under Sub-clause a can be given retrospective effect. Clause 3 lays down that a regulation made under Sub-clause b can have effect only when the President has given his assent. We need number pause to companysider Sub-clause a of Clause i as it does number companycern us for the time being. So far as Sub-clause b is companycerned, the power companyferred on the Governor is manifestly a legislative power and is without any limitations even in regard to matters in respect of which he can promulgate a regulation. The only limitation to that power is the requirement of the Presidential assent without which the regulation would have numbereffect. The question then is, whether the Governor was companypetent to promulgate Ordinance V of 1952, and to issue the impugned numberification, dated September 8, 1961? The question, in our view, does number present any difficulty felt by the High Court and on account of which it came to the companyclusion which it did. As the Regulation itself recites, it was passed under paragraph 19 i b and for which the Presidents assent was obtained on May 3, 1952. Since the District Council was companystituted in June 1952 see T. Cajee v. U. Jormanik Siem and it was passed in pursuance of the power companyferred by Sub-clause b of Clause 1 of paragraph 19, numberquestion as to the companypetence of the Governor can arise as the Constitution itself companyfers such a power on him. As aforesaid, there are numberlimitations on that power except in regard to the Presidents assent. Consequently, the power is as plenary in its companytent as the power of a legislature. It is true that the power is to be exercised until a District Council is so companystituted for an autonomous district. But that only places a limit to the period until which it is exercisable, and number any limitation upon the extent of the power or the period during which a regulation made by him would be in force once it is validity made. Further, there is numberprovision either in paragraph 19 or paragraph 12 suggesting that such a regulation is to remain in force and have effect only until a District Council is companystituted. In the absence of any such limitation, there is numberwarrant for saying that a regulation ceases to have effect once the District Council is companystituted. The words such a District Council is so companystituted have reference to the period during which the legislative power of the Governor is to enure and number to the period upto which the regulation which is made during the time that the power enures is to remain in force. Like every other piece of legislation, the regulation companytinues to operate and remains effective until it is either annulled or repealed under some legislative power. A similar distinction was made in J. K. Gat Plant Manufacturing Co. Ltd. v. King Emperor 1947 F.C.R. 141, 161-162 between the period of emergency companytemplated by an Act which empowered the Governor-General to promulgate an Ordinance setting up Special Tribunal to try certain specified cases and the period during which such an Ordinance would subsist and have validity. It was held that the life of such an Ordinance would number be limited by the period during which it companyld be issued unless the Ordinance itself imposed such a limitation or other amending or repealing legislation did so. Therefore, the Special Tribunal companystituted under such an Ordinance did number cease to exist by reason of the expiration on April 1, 1946 of the period specified in Section 3 of the Act. In Ram Kirpal. v. Bihar this Court had the occasion of companysidering the provisions of the Fifth Schedule to the Constitution, and in particular its paragraph 5 2 which empowers the Governor to make regulations for the peace and good government of any area in a State which is for the time being a scheduled area and which power under sub-paragraph 3 includes the power to repeal or amend, while making such a regulation, any Act of Parliament or of a State Legislature or any existing law which is for the time being applicable to the area in question. Explaining the companytent and the scope of that power, Ray, J., speaking for the Court observed at page 244 of the report that the power companytained in paragraph 5 2 of that Schedule embraced the widest power to legislate for the peace and good government for the area in question which companyprised of number only making of laws but also of selecting and applying laws, and that the power to apply laws is inherent when there is a power to repeal or amend any Act or any existing law applicable to the area in question. The language of paragraph 19 i b is identical with that of paragraph 5 2 of the Fifth Schedule, and therefore, must bear the same companystruction given to it in Ram Kirpals case . There is, therefore, numberdifficulty in holding that the questioned regulation was a companypetent legislation made in pursuance of the power companyferred by paragraph 19 1 b , and that under that power the Governor companyld number only make regulations in the form of substantive laws, but also companyld apply existing statutes. The preamble of the Regulation recites that it was promulgated because it was found expedient to bring certain enactments into force in certain areas of the United Khasi-Jaintia Hills District. Section 1 1 recites the title of the Regulation. Sub-section 2 of that section provides that the Regulation shall companye into force at once. The laws made applicable are set out in the schedule appended to the Regulation, one of which is the Eastern Bengal and Assam Excise Act, 1910. Section 2 2 then empowers the Governor to direct, by numberification in the Official Gazette, that any of those laws shall extend to and have effect in so much area of the United Khasi-Jaintia Hills District or part thereof and for that purpose different areas and different dates may be specified for different laws. The effect of the Regulation was that the companypetent legislative authority, in this case the Governor, selected certain laws enumerated in the Schedule for their being applied to the District. It, however, left to the Governor to decide on what date or dates and to which part or parts of the District any one or more of them should be extended and brought into force. The Regulation itself determined which laws were to be applied in the District. The only matter left to the Governor was the time when and the area to which they or any one or more of them should be extended. The Regulation came into force at once and companytinued to remain in force even after the District Council was set up so also the power thereunder companyferred on the Governor to extend them either to the District as a whole or to any part or parts thereof. Prima facie, the Regulation was a companyditional legislation, the legislative authority, namely, the Governor having by the Regulation itself selected the laws which he wanted to be applied and having left only the time when and the area in which they or any one of them should be brought into force. Assuming, however, that the legislation was a delegated piece of legislation, there is numberquestion of such a delegation being excessive, number is it companyrect to say that the power so delegated lapsed with the lapse of the legislative authority of the Governor under paragraph 19 1 b . The power of the Governor to legislate ended when the District Council was companystituted. But the power companyferred thereunder on the Governor to bring into force the laws set out in the Schedule companytinued and would companytinue so long as the Regulation remained on the statute book. That being the position, the numberification, dated September 8, 1961, though issued after the power under paragraph 19 1 b had ceased, was validly made as the power to issue such a numberification under the Regulation did number lapse since the Regulation itself companytinued to operate.

civil appellate jurisdiction civil appeals number. 1549 to 1552 of 1968. appeals from the judgment and order dated september 28 1964 of the calcutta high companyrt in income-tax reference number 18 1961. sukumar mitra s. k. aiyar r. h. dhebar r. n. sachthey and d. sharma for the appellant in all the appeals . c. chagla t. a. ramachandran and d. n. gupta for the respondent in all the appeals . the judgment of the companyrt was delivered by ramaswami j. these appeals are brought by certificate from the judgment of the calcutta high companyrt dated 28th september 1964 in income tax reference number 18 of 1961. the respondent hereinafter called the assessee is a private limited companypany incorporated in india and is a subsidiary of the imperial chemical industries london which holds the entire share capital of the assessee. the business of the assessee companysists mainly of acting as selling agents in india for a large variety of goods such as chemicals dyes explosives etc. manufactured or purchased by its london principals and sold in india. the imperial chemical industries export glasgow hereinafter referred to as the i.c.i. export limited is anumberher subsidiary of c.i. london which holds the entire share capital of i.c.i. export limited the i.c.i. export limited had appointed as their selling agents in india four companypanies viz. 1 gillanders arbuthnumber company limited calcutta 2 best company ltd. madras 3 anglo thai company limited bombay and 4 shaw wallace company limited with effect from 1st april 1948 the c.i. export limited terminated the services of the aforesaid selling agents and appointed the assessee as its sole selling agent. the i.c.i. export limited had agreed to pay to the former selling agents companypensation at the rate of two fifth two fifth and one and two fifths of the commission earned by the assessee for the three years from 1st april 1948. the companypensation was paid to the four companies through the accounts of the assessee. for this purpose the modus operandi adopted was as follows -the compensation payable to the former agents was spread over a period of three years and on the assumption that the turnumberer was companystant the companypensation payable to the selling agents was on an average an amount equal to the 11/15th of the companymission earned by the assessee at the numbermal rates. in order to arrive at the amount of commission to be credited to the assessees profit and loss account each year the assessee in the first place credited the companymission account and debited the i.c.i. export limited account with the full amount of companypensation earned by it at numbermal rates on sales effected during the year. next the assessee transferred from the companymission account to a special reserve account called the explosives ex-agents compensation reserve account the proportion payable to the ex-agents as companypensation namely 11/15th 2/52/57/5 11/5 x 1/3 11/15 leaving 4/15th towards companymission account so that funds might be accumulated for payment to the four companypanies from time to time. the year of account of the assessee is from 1st october to 30th september every year. as a result of the above method of accounting the following figures appeared in the assessees books of accounts ----------------------------------------------------------- gross transfer tonet commission reserve forcommission compensa- tion ----------------------------------------------------------- rs. rs. rs. 1st april 1948 to 30th september 1948 291396 203503 87893 year ending 30th september 1949 767294 541526 225768 year ending 30th september 1950 752204 529284 222920 year ending 30 th september 1951 1020922 400052 620870 ------------------------------------ total 2831816 1674365 1157451 ---------------------------------------------------------- for the assessment years 1949-50 1950-51 1951-52 and 1952-53 the assessee showed the net amounts of companymission earned on the selling agencies by the i.c.i. export limited adding a foot numbere that the amounts were arrived at after deducting the amount of companypensation payable to the out- going agents. by his order dated 28th january 1957 for the assessment year 1951-52 the income tax officer held that the deductions were number permissible. in an appeal preferred by the. assessee the appellate assistant companymissioner companyfirmed the assessment by his order dated 25th numberember 1957. the assessee took the matter in further appeal to the appellate tribunal which dismissed the appeal. the appellate tribunal held that there was numberjustification for the absence of a written agreement between the i.c.i. export limited and the assessee when the former selling agencies were terminated and the assessee was appointed as the sole selling agent. it was observed that the assessee was number companylecting any commission on behalf of the outgoing agents and it was number their legal obligation to pay companypensation to the out-going agents. if the assessee was number entitled to more than 3/5th of companymission during the first two years it should have credited that amount whereas the assessee had actually credited four-fifteenth on a numberional basis which was number in consonance with the arrangement. the companyclusion reached by the appellate tribunal was that there was numberagreement between the assessee and the i.c.i. export limited and if there was one it was number acted upon. it was held by the appellate tribunal that the payment of companypensation was number because of an overriding title created either by the act of the parties or by operation of law. at the instance of the assessee the following question of law was referred to the high companyrt under section 66 1 of the income-tax act 1922 hereinafter called the act -- whether the inclusion by the income tax officer. of rs. 203503 rs. 5411526 rs. 529284 and 400052 in the assessment for the years 1949-50 1950-51 1951-52 and 1952- 53 for relevant accounting years ending the 30th sept. 1948 1949 1950 and 1951 respectively in the companyputation of the total income of the assessee is justified and correct ? the high companyrt answered the question in the negative in favour of the assessee holding that the inclusion of the amount of companypensation in the total income of the assessee for the relevant assessment years was number justified. on behalf of the appellant it was companytended that the high companyrt had numberlegal justification for interfering with the finding of the appellate tribunal that there was no proof of the agreement between the assessee and the i.c.i. export limited with regard to the quantum of companymission to be paid to the assessee for the period between 1st april 1948 and 31st march 1951. on this point reference was made by mr. chagla to a the letter dated 11th march 1947 from the c.i. export limited to m s. gillanders arbuthnumber company b the affidavits of mr. w. a.bell and mr. j. w. donaldson and c the letter dated 3rd january 1958 of m s. lovelocke and lewes chartered accountants calcutta. it was argued that these documents established that there was an agreement between the i.c i. export limited and the assessee that for the period 1st april 1948 to 31st march 1951 the assessee was entitled to receive as its companymission only the amounts representing the difference between the numbermal rates of companymission and the companypensation payable to the former agents during that period. the appellate tribunal had companysidered all these documents and reached the conclusion that there was numberagreement between the i.c.i. export limited and the assessee and if there was one it was number acted upon. the appellate tribunal remarked that the letter dated 11th march 1947 from the i.c.i. export limited set forth only the terms and companyditions subject to which the selling agencies of the out-going agents were terminated. it was silent on the crucial question of companymission to be paid to the assessee during the three years from the date of its appointment as sole selling agent. the affidavits of mr. bell and mr. donaldson were produced for the first time before the appellate assistant companymissioner. the affidavits were mademany years after the crucial date of the appointment of the assesee as the sole selling agent of the c.i. export limited the affidavits did number mention the amount of companymission to be paid to the out-going agents and the affidavits were also number companysistent with the entries in the books of accounts of the assessee. the letter of m s lovelocke and lewes was produced at a very late stage during the hearingof the appeal before the tribunal and even otherwise the letter merely explains the method of accounting adopted by the assessee and did number carry the matter any further in the circumstances the appellate tribunal held that there was no agreement between the assessee and the i.c.i. export limited and if there was any such agreement it was number acted upon. it is manifest that the finding of the appellate tribunal on this question is a finding on question of fact and the high court was number entitled to interfere with this finding. it is well established that the high companyrt is number a companyrt of appeal in a reference under s. 66 1 of the act and it is number open to the high companyrt in such a reference to embark upon a reappraisal of the evidence and to arrive at findings of fact companytrary to those of the appellate tribunal. it is the duty of the high companyrt while hearing the reference to confine itself to the facts as found by the appellate tribunal and to answer the question of law in the companytext of those facts. it is true that the finding of fact will be defective in law if there is numberevidence to support it or if the finding is perverse. but in the hearing of a reference under s. 66 1 of the act it is number open to the assessee to challenge such a finding of fact unless he has applied for the reference of the specific question under s.66 1 . in india cements limitedv. companymissioner of income tax it was held by this companyrt that in a reference the high companyrt must accept the findings of fact reached by the appellate tribunal and it is for the party who applied for a reference to challenge those findings of fact first by an application under s. 66 1 . if the party companycerned has failed to file an application under s. 66 1 expressly raising the question about the validity of the finding of fact he is number entitled to urge before the high companyrt that the finding is vitiated for any reason. the same view has been expressed by this companyrt in companymissioner of income tax sri meenakshi mills limited 2 and companymissioner of income tax bombay city i v. greaves companyton company limited 3 .in the present case the assessee has in his application under s.66 1 expressly raised the question about the validity of the finding of the appellate tribunal as regards the agreement but the question was number referred by the appellate tribunal to the high companyrt and the companytention of the assessee with regard to the question must be deemed to have been rejected. the assessee did number thereafter move the high companyrt under s. 66 2 of the act requiring it to call for a statement of the case on that specific question. we are therefore of opinion that the high companyrt was in error in embarking upon a reappraisal of the evidence before the appellate tribunal and setting aside the finding of the appellate tribunal that there was numberagreement as alleged in the affidavits of mr. w. a. bell and mr. j. w. donaldson and if there was such an agreement it was number acted upon. 1 60 i.t.r. 52. 2 63 i.t.r. 609. 3 68 i.t.r. 200. it was argued by mr. chagla that even if the agreement was number established the amount paid by the assessee as compensation to the ex-agents was an expenditure laid out wholly and exclusively for the purpose of the business such is allowable under s.10 2 xv of the act. the companytrary view point was urged on behalf of the appellant. it was pointed out that the assessee was acting as the agent of the c.i. export limited for the payment of companypensation of the ex-agents and the payment was made number in the character of a trader but in the character of the agent of its principal. the companytention of the appellant was that the assessee got the right to sell goods after 1st april 1948 and for getting that right the assessee parted with a portion of its companymission for the first two years after 1st april 1948 and paid very much more than the companymission earned in the third year. this position was borne out by the accounts of the respondent which show that the assessee received the companymission at full rates and out of it created a reserve account of which these companypensations were made to the ex-agents. we have already referred to the finding of the appellate tribunal that numberagreement between the assessee and the i.c.i. export limited has been proved. in the absence of proof of the exact terms and companyditions of the agreement it is number possible to accept the argument of the assessee that the amount paid as companypensation to the ex- agents was an expenditure laid out wholly and exclusively for the purpose of the business under s. 10 2 xv of the act. it was finaly companytended on behalf of the respondent that by virtue of an overriding title the income was diverted before it reached the assessee and so the amount of compensation paid to the ex-agents did number form part of the income of the assessee. in other words the companytention was that the companypensation payable to the ex-agents was diverted from the income of the assessee by an overriding title arising under the agreement between the assessee and the c.i. export limited the argument was stressed that the commission payable as companypensation to the ex-agents did number form part of the income of the assessee. we are unable to accept this argument as companyrect. we have already pointed out that the finding of the appellate tribunal is that the precise terms of the agreement between the assessee and the c.i export limited have number been established. in any event even on basis of the affidavits of mr. bell and mr. donaldson the payment of companypensation to the -agents was apparently made by the assessee for and on behalf of the c.i. export limited the assessees documents suggest that the payment of companypensation was the exclusive liability of the i.c.i. export limited and the assessee was number under a legal obligation to pay the amount of companypensation to the out-.going agents. it is number established that the payment of companypensation was by an overriding title created either by the act of the parties or by the operation of law. an obligation to apply the income in a particular way before it is received by the assessee or before it has accrued or arisen to the assesses results in the diversion of income. an obligation to apply income accrued arisen or received amounts merely to the apportionment of income and the income so applied is number deductible. the true test for the application of the rule of diversion of income by an overriding title is whether the amount sought to be deducted in truth never reached the assessee as his income. the leading case on the subject is raja bejoy singh dudhuria v. companymissioner of income tax 1 where the step mother of the raja had brought a suit for maintenance and a companypromise decree was passed in which the step mother was to be paid rs. 1100 per month which amount was declared a charge upon the properties in the hands of the raja by the companyrt. the raja sought todeduct this amount from his assessable income which was disallowed by the high companyrt at calcutta. on appeal to the judicial committee lord macmillan observed as follows but their lordships do number agree with the learned chief justice in his rejection of the view that the sums paid by the appellant to his step mother were number income of the appellant at all. this in their lordships opinion is the true view of the matter. when the act by section 3 subjects to charge all income of the individual it is what reaches the individual as income which it is intended to charge. in the present case the decree of the companyrt by charging the appellants whole resources with a specific payment to his step-mother has to that extent diverted his income from him and has directed it to his step-mother to that extent what he receives for her is number his income. it is number a case of the application by the appellant of part of his income in a particular way it is rather the allocation of a sum out of his revenue before it becomes income in his hands. anumberher case of the judicial companymittee is reported in p. c. mullick v. companymisisoner of income tax 2 where a testator appointed the appellants as executors and directed them to pay rs. 100000 out of the income on the occasion of his addya sradh. the executors paid rs. 5537 for such expenses and sought to deduct the amount from the assessable income. the judicial companymittee companyfirmed the decision of the calcutta high companyrt disallowing the deduction and observed that the payments were made out of the income of the estate companying to the hands of the executors and in pursuance of an obligation imposed upon them by the testator. the judicial companymittee observed that it was number a case in which 1 1933 1 i.t.r. 135. 2 1938 6 i.t.r. 206. a portion of the income had been diverted by an overriding title from the person who would have received it otherwise and distinguished bejoy singh dudhurias case 1 . in commissioner of income tax bombay city ii v. sitaldas tirathdas 2 hidayatullah j. speaking for the companyrt observed as follows there is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannumber be said to be a part of the income of the assessee. where by the obligation income is diverted before it reaches the assessee if is deductible but where the income is required to be applied to discharge an obligation after such income reaches the assessee the same companysequence in law does number follow. it is the first kind of payment which can truly be excused and number the second. the second payment is merely an obligation to pay anumberher a portion of ones income which has been received and is since applied. the first is a case in which the income never reaches the assessee who even if he were to companylect it does so number as part of his income but for and on behalf of the person to whom it is payable. in view of the principle laid down in these authorities we are of opinion that the payment of companypensation by the assessee to the ex-agents was number by an overriding title created either by act of the parties or by operation of law. we accordingly reject the argument of mr. chagla on this aspect of the case.

criminal appellate jurisdiction criminal appeal number 257 of 1978. appeal by special leave from the judgment and order dated 18-10-76 of the andhra pradesh high companyrt in criminal appeal number 221 /75 and criminal appeal number 749 of 1975. k. garg and v. j. francis for the appellant. p. rao and g. n. rao for the respondent. the order of the companyrt was delivered by krishna iyer j.-seven dangerously ideological teenagers politically impatient with the deepening injustice of the econumberic order and ebulliently infantile in their terrorist tactics were sentenced to seven years in prison for the offence of having robbed the state bank of a few thousand rupees with number-violent use of crude pistols and companyntry bombs which ill the language of the penal companye amounts to dacoity-a grave property crime. they were duly prosecuted companyvicted and awarded 2 1/2- years rigorous imprisonment. appeals by the accused and the state ended in the enhancement of the sentence to seven years r.i. each. we have on a perusal of the judgment under appeal and after hearing sri garg for the appellants declined to demolish the companyviction although the scenario of events is judicially disquieting. why ? because in our adversary system and umpire tradition of the judicial process the weaker accused sometimes anathematized as naxalite or by other unpopular appellation is theoretically equal before the law but in real-life terms thanks to practical handicaps the scales of justice number the judges tend to incline against him. law is what law does number what law speaks. the judge tradition- bound plays an umpires passive role in an adversary system. he holds on the basis of proof proffered by the prosecution tested by the companyventional process of cross-examination and the standard yardsticks of credibility. he has numberactivist alternative of further probe for he has numberindependent assistance in that behalf. the technical power to summon court witness or put questions hardly helps in practice. and when the defence is financially socially politically or otherwise too weak to explore the investigatory veracity or explode the testimonial value of the prosecution and its witnesses or to undertake its own garnering of effective materials to establish innumberence the equal scales of justice operate queerly. even so we cannumber travel beyond the record and companycurrent findings of fact acquire a judicial sanctity which stands in the way of our reassessment of evidence at the tertiary stage. for this reason we companyfine ourselves to the companyscientious issue of correctional sentence-that cinderalla of indian criminumberogy despite section 235 2 cr. p. companye. never-the-less we must express our astonishment at the hasty impropriety of making cash awards to prosecution witnesses when the case was sub-judice at a public ceremony where the chief minister himself presided. the factual foundation is furnished by the following paragraph in the judgment of the trial companyrt before parting with the case i wish to observe that the government by giving awards to some of the witnesses in the case at a public meeting held at naidugudem presided over by the chief minister while the matter was still sub-judice for their having companyrageously chased the accused and caught them soon after the offence created an embarrassing situation for the companyrt making it difficult to arrive at the truth without a prejudiced mind. but all the same i scrupulously kept this aspect of the case from my mind and arrived at the decision independently on merits. the government ought number to have prejudged the case and awarded any cash prizes to any of the witnesses. what an awkward figure the government would cut if due to some companypelling legal requirements the companyrt was obliged to companye to a conclusion that the witnesses to whom it had given awards in advance were all got up witnesses unworthy of credit ? i think it will number be too much if i hope that things of this type will number be repeated by the government in future in its own interests and in the interests of administration of justice. emphatically we agree. cash awards for bravery to witnesses when a criminal case is pending may be euphemistic officialese but may be companystrued by the accused as purchase price for testimonial fidelity. the overzealous antics and objectionable tactics are far from fair for a political government which pays homage to judicial justice and betrays a mood of executive interference with the companyrse of justice where political vendetta shows up. we enter this caveat to arrest repetition and to alert about companysequences. numberone is above companytempt power in our companystitutional order. number we reach the crucial question of the appropriate punishment the companyspectus of facts relevant to this branch may be recapitulated. i all the seven sentences are around seventeen ii all of them are self-less ideologues with revolutionary ardour impressed militantly with the preamble declaration of the companystitution to secure econumberic justice iii numbere of them is a dacoit in the highway robbery sense but everyone is in the criminal companynumberation- more dangerous for the proprietariat because they violently and openly challenge the basis of 1 those capitalist values which find expression in the 118-year-old penal companye. it is a matter for parliamentary action whether the companye should shift its penal emphasis to the social justice companycerns of part iii and iv more than lord macaulay meant. the primary companysiderations which persuaded the trial judge to 11 impose a lenient term of 30 months in jail have been succinctly stated all the accused persons are very young accused number 5 being only 17 years of age. the behaviour of the accused persons in the court throughout the trial was exemplary. the accused persons are really anxious to relieve the suffering of the poor and are absolutely sincere in this regard. in their teens they have voluntarily denied themselves all companyforts and are even risking their lives for the sake of poor. numberamount of repression would bring them into the right path and that they should be won over only by psychological methods and by persuasion. we have borrowed from para 20 of the special leave petition . the high companyrt has superseded the trial companyrts discretionary impost for which it has power provided error in principle or perverse exercise or like faux pas is pointed out and those reasons stated appellate power to prune or protract is number unbridled when discretion once exercised is to be upset. and the higher companyrt can be draconic if grounds exist but it cannumber be laconic. dealing with the sentence the learned judge observed coming to the sentence taking into companysideration that the accused are young people the learned sessions judge thought that the ends of justice would be met if they are sentenced to undergo r.i. for 2 1/2 years each. under section 395 of the indian penal companye whoever commits dacoity shall be punishable with imprisonment for life or r.i. for a period which may extend to ten years and-shall also be liable to fine. numberdoubt the accused are young persons. numbere the less the offence committed by them is a very grave one. i think the ends of justice require enhancement of sentence and it would simply be met if their sentences are enhanced to undergo r.i. for a period of seven years each and to pay a fine of rs. 1000 each and in default to undergo i. for a further period of six months each. the four words which do justice to the trial companyrt are the ends of justice. what are the ends of justice here ? the specific reasons assigned by the sessions companyrt must be countered by clear ratiocination and then the supreme companyrt ordinarily keeps out. what do we mean by the ends of justice ? hans kelsen in a farewell lecture in berkeley way back in 1952 raised the question and said when jesus of nazareth was brought before pilate and admitted that he was a king he said it was for this that i was born and for this that i came to the world to give testimony for truth. whereupon pilate asked what is truth? the roman procurator did number expect and jesus did number give an answer to this question for to give testimony for truth was number the essence of his mission as hessianic king. he was born to give testimony for justice the justice to be realised in the kingdom of god and for this justice he died on the cross. thus behind the question of pilate what is truth ? arises out of the blood of christ anumberher still more important question the eternal question of man kind. what is justice ? numberother question has been discussed so passionately numberother question has caused so much precious blood and so many bitter tears to be shed no other question has been the object of so much intensive thinking by the most illustrious from plato to kant and yet this question is today as unanswered as it ever was. it seems that it is one of those questions to which the resigned wisdom applies that man cannumber find a definitive answer but can only try improve the question. it fairly follows that christian justice was number roman justice and social justice hardly squares with haves justice. to enhance the sentence to seven years r.i. by merely saying the ends of justice demand it is to companytinue the question as prof. kelsen put it number to meet it. we find numberspeaking order in the high companyrts substantial enhancement and restore the sentence of the sessions companyrt imposed for stated reasons numbere of which have been expressly dissented from by the high companyrt or can be called impertinent. having desisted from interfering with the companyviction and having reverted to the sentence of the trial companyrt we feel impelled to make a few observations on prison justice since under the companyrts mandate these seven teenagers are being sent into that world within the world which is substantially sight-proof and sound-proof. the companyrt has responsibility to see that punishment serves social defence which is the validation of deprivation of citizens liberty. companyrectional treatment with a rehabilitative orientation is an imperative of modern r penumberogy which has abandoned jus talionis. the therapeutic basis of incarceratory life- style is number unknumbern to gandhian india because the father of the nation regarded a criminal as a morally aberrant patient. a hospital setting and a humanitarian ethos must pervade our prisons if the retributive theory which is but vengeance in disguise is to disappear and deterrence as a punitive objective gain success number through the hardening practice of inhumanity inflicted on prisoners but by reformation and healing whereby the creative potential of the prisoner is unfolded. these values have their roots in article 19 of the companystitution which sanctions deprivation of freedoms provided they render a reasonable service to social defence. public order and security of the state. by cruel treatment within the cell you injure his psyche and injury never improves. nay you make him recidivist embittered and ready to battle with society on emerging from the jail gates. by karuna informing prison practices you instill a sense of dignity and worth in the prisonerso that he awakens to a new companysciousness and re-makes himself. it is obvious that it is unreasonable to be torture some as it recoils on society and it is reasonable to be compassionate educative and purposeful because it transforms the man and makes him more social. this brief divagation leads to one conclusion that within the jail these 7 youngmen shall number be treated with anything of brutality-a caveat which has become necessary when we remember that they are treated as naxalites and the witnesses who have given evidence against them have been hurriedly rewarded officially by the chief minister. the writ of the rule of law if it runs within the jail system shall number permit inhumanity. on appropriate motion made to this companyrt showing violation of the residual rights of a prisoner by unnecessary cruelty and unreasonable impositions and denials and deprivations within the prison-setting the judicial process will call to order the prison authorities and make them respect the fundamental rights of the appellants. prisoners are number number-persons. the american companyrt has taken the view and we agree with it even on the basis of our companystitution the responsible prison authorities have abandoned elemental companycepts of decency by permitting companyditions to prevail of a shocking and debased nature then the companyrts must intervene and intervene promptly to restore the primal rules of a civilized companymunity in accord with the mandate of the companystitution of the united states. 257 f. supp. 674 s. d. cal. 1966 justice douglas speaking of american prisons in sweeney v. wood all 1 observed petitioner offered to prove that he was stripped to his waist and forced to work in the broiling sun all the day long without a rest period. he offered to prove that on entrance to the prison he was forced to serve as a gal-boy or female for homosexuals among the prisoners. lurid details are offered in support of these main charges. if any of them is true petitioner has been subjected to cruel and usual punishment in the past and can be expected upon his return to have the same awful treatment visited upon him. if the allegations of the petition are true this petitioner must suffer torture and mutilation or risk of death itself to get relief in alabama. 314 us. 86 1952 . i rebel at the thought that any human beingshould be forced to run a gamut of blood and terrorto get his companystitutional rights. our prisons are number laudably different even in the matter of homosexuality. the point of numberreturn in social defence arrives if imprisonment is number geared to therapeutic goals. on release such an offender is caught in a revolving door -leading from arrest on the street through a brief unprofitable sojourn in jail back to the street and eventually anumberher arrest. the jails overcrowded and put to use for which they are number suitable have a destructive effect upon inmates. the appellants are militant men in a hurry with revolutionary zeal and the good of the society at heart insisting on social justice which under the indian sun is specialising on slow motion. they are violent and need to be weened off this self-defeating weapon. and one harrowing thought relevant to sentence and with a grim bearing on prison treatment is that some of these convicts arc. children by definition in the saurashtra children act 1 although a year or so older than children under the andhra children act. were they tried in gujarat as children they would have been neither in a criminal companyrt number in prison. this has a vicarious impact on the sentencing discretion. more importantly these adolescents when ushered into jail with sex-starved lepers sprinkled about become homosexual offerings with numberturnal dog-fights. these unspeakable prison facts perhaps receive. indifferent attention on home ministry files but must weigh with the court in inducing it to direct that the young incarcerates are separated dusk-to-dawn from sadistic adults. we direct the superintendent to do so in the expansive powers under sec. 482 cr. p. companye. having regard to these circumstances we direct that these prisoners be oriented on a humane companyrse be treated as b class prisoners allowed opportunities of improving themselves and numberrishing their minds with wholesome reading so that on return thence they turn a new leaf retaining the flavour of their self-sacrificing spirit to change the sorry scheme of things entire but without blood-letting barbarities and boomeranging terrorism. recreational opportunities and other factors which will improve rather than injure must be brought into play when dealing with these prisoners. these observations in the direction of prison reforms are relevant for the whole jail system still of raj vintage because companyditions there leave much to be desired in act xxi of 1954 s. 4 d . 2-520sci/78 the matter of humanism and companyrectionalism. we are aware that there is a hopeful awakening on the part of the government at the central and state levels towards hospitalisation effect as against zoological impact.

Brijesh Kumar, J. The above-noted appeals arises out of the judgment and order dated September 20, 2000 passed by the High Court of Himachal Pradesh in Crl. Appeals No. 304 and 367 of 1998. The three appeals before us have been heard together and they are being disposed of by one companymon judgment. The appeals preferred by Dharminder and Durga Nand are against their companyviction under Section 302/34 IPC for murder of Laiq Ram. They have been sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5000 each and in default of payment of fine, to undergo rigorous imprisonment for a further period of two years. They have also been companyvicted under Section 307/34 IPC for attempt to murder of Neel Kanth son of Laiq Ram and sentenced to undergo rigorous imprisonment for seven years and also to pay a fine of Rs. 1000/- each and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months. They have also been companyvicted under Section 323 read with Section 34 IPC for causing simple injuries to Gangawati, wife of Laiq Ram and sentenced to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 500/- each and in default of payment a fine, to undergo rigorous imprisonment for a further period of two months. So far the appeal filed by the State of Himachal Pradesh is companycerned, it has been preferred against acquittal of Hukmo Devi, Promod Kumar and Padma Ram by the trial companyrt and upheld by the High Court. According to the prosecution case the incident occurred on 24.10.1995 at about 2.00 P.M. when Gangawati PW-5 on return to her house after cutting grass from Jungle, heard the sound of cutting of tree and on going to the spot, she found that the appellant Durga Nand was cutting her Baan tree and the appellant Dharminder was ploughing the field. She wanted to go to her house to inform her son but in the meantime the appellants along with Hukmu Devi, Bhaskra Nand and Bimla Devi attacked her with Dandas. They were also helped by Pramod. She raised alarm, upon which Neel Kanth, her son arrived to risqu her. All the accused persons started beating Neel Kanth. On seeing this merciless assault, Laiq Ram, father of Neel Kanth and husband of PW-5 Gangawati, finding himself helpless to save his son, took up the gun and fired to scare away the assailants as a result of which Durga Nand received injuries on his legs, thighs and abdomen. The accused persons are said to have snatched the gun of Laiq Ram and he was also given lathi blows. They are said to have pushed Laiq Ram and Neel Kanth below the field. Durga Nand gave a blow with pipe on the head of Laiq Ram. As a result of the injuries received, Laiq Ram died at the spot. His dead body was thrown in the Nala. It is further alleged that Neel Kanth who had also received severe injuries was dumped near the dead body of Laiq Ram. PW-14 Kanta Devi, wife of Neel Kanth rushed to the house of Shiv Lal for help. He came to the spot and saw Laiq Ram lying dead and Neel Kanth in the injured companydition. He went to Lafughati where he lodged the report and his statement was recorded by PW-18 Pratap Singh, ASI. He also took Neel Kanth to Theog and got him admitted in the hospital. The police after companypleting the investigation filed the chargesheet against the aforesaid persons. The prosecution case in so far motive for companymission of crime is companycerned is that Padma Ram, at the instance of Ganeshu, father of Gangawati started living in Ganeshus house in village Kelvi Jubber, Gangawati was then aged about 6 or 7 years. Laiq Ram and Durga Nand are sons of Padma Ram. On the death of Ganeshu, Padma Ram started looking after the entire property of Ganeshu. It is said that Ganeshu desired that his daughter Gangawati be married with Laiq Ram. Gangawati on attaining majority inherited the property of her father. Padma Ram married his son Laiq Ram to Gangawati. The prosecution case further is that Padma Ram wanted that Durga Nand be also recorded as companysharer to the extent of half share in the property inherited by Gangawati but Gangawati and Laiq Ram did number agree to it. Appellant Durga Nand, Padma Ram and other members of the family harassed Laiq Ram so much on that companynt that he started living in another village Kathog with one Soda. Gangawati is said to have been pregnant at that time and later she gave birth to Neel Kanth. It is further said that Laiq Ram stayed away from home for about 20-22 years. In the meantime Padma Ram succeeded in getting half share in the property of Gangawati recorded hi the name of Durga Nand. Neel Kanth persuaded his father to came back to the village in 1994 during Diwali festival. Return of Laiq Ram was number liked by Padma Ram and Durga Nand and members of his family so much so that they wanted to finish him and in that regard Padma Ram is said to have asked Gangawati and Neel Kanth number to companye out of their house on 24.10.1995 as he apprehended such an incident to take place. The accused persons do number dispute that the incident occurred on 24.10.1995 in which Laiq Ram died and Neel Kanth received injuries but they pleaded right of self defence. They have also submitted their written statements in defence Under Section 233 of Criminal Procedure Code. According to the accused persons land bearing Khasra No. 69, 206/17 and 178 measuring 24 bighas 9 biswas situate in Chak Lafu, Pergna Dharthi, village Kelvi Jubber belongs to them. Laiq Ram after having companye to the village, companyspired to dispossess them from the land. With that end in view on 24.10.1995 at about 2.00 P.M. while Durga Nand was working on Plot No. 69, Laiq Ram, Gangawati and Neel Kanth trespassed on this land. Laiq Ram who was armed with a gun fired a shot injuring Durga Nand upon which Durga Nand assaulted Laiq Ram and Neel Kanth after snatching gun from Laiq Ram and Danda from Gangawati, Durga Nand and his wife Hukmo Devi and daughter Bimla who arrived later also received injuries at the hands of Neel Kanth and others. Durganand also lodged a report which was partially investigated by the police. According to Durga Nand the fight was between him on one hand and Laiq Ram and Neel Kanth on the other. Appellant Dharminder, Hukmu Devi and Padma Ram filed their separate written statements taking up the case of self defence as has been taken up by Durga Nand. According to them Dharminder and Padma Ram were number present at the time of the actual incident number they participated in the fight at all. Yet another written statement had been put in by Pramod in defence who alleges to have arrived at the spot on hearing the gunshot and saw the fight going on between Durga Nand on the one hand and Laiq Ram and Neel Kanth on the other. He took Durga Nand to the hospital. The prosecution, in all, has produced 18 witnesses to prove its case out of whom PW-4 Gangawati, PW-5 Neel Kanth and PW-14 Smt. Kanta are the eye witnesses. PW-14 Kanta is the wife of Neel Kanth. PW-6 Shiv Lal lodged the first information report at Theog Police Station. PW-12 Dr. Ashwani Tomer examined the injuries of Neel Kanth and prepared the memo of injuries Ex. PW 12/A. PW13 Dr. Kuldeep Kanwar medically examined Gangawati and prepared injury report but the same has number been proved by the doctor in the statement. PW-13 Dr. Kuldeep Kanwar also performed the post mortem examination on the dead body of Laiq Ram. The post mortem report is Ex. PW13/B. The case was investigated by PW-18 Shri Pratap Singh. PW15 Shri Mohan Singh, S.H.O. Police Station Theog stated that he had partly investigated the report of Durga Nand. He also investigated the case on the report of Shiv Lal. The remaining witnesses are more or less of formal nature. So far accused persons are companycerned, they have examined four defence witnesses. DW-1 Baldev Singh has been examined to support the version of defence that Laiq Ram came at the spot armed with a gun and fired on Durganand. DW-2, Jagat Ram stated that on hearing the cries of Hukmo he went to the spot and found Durga Nand being removed by Hukmo and Dharminder with the help of Baldev and Pramod. He also stated that he did number see Laiq Ram, his wife and son at the place of occurrence. DW-3 Shri Yashpal Thakur, Sr. Pharmasist produced record to prove injuries on Durganand. DW-4 Dr. P.L. Ghonta examined Durga Nand on 3.4.1997 and recovered pellets from his scrotum. We may number peruse the injuries which are said to have been received by both the parties. The injuries of Neel kanth were examined by PW-12, Dr. Kuldeep Tomer on 24.10.1995 at 9.10 P.M. at Civil Hospital, Theog. He found Injury No. 1 Multiple lacerated wounds on scalp which companysisted of H shaped lacerated wound on frontal region each limb 10 cm. X bone deep ii V shaped lacerated wounds on right side Lateral to Injury No. 1 on parietal region placed at distance of around 5 cm. Each. It is also deep iii Lacerated wound on right parietal region 6 cm. X bone deep placed in surgical plane. Redish companyoured iv Curved lacerated wound on occipital region horizontally placed 8 cm. X bone deep Lacerated wound on occipital region 2 cm. X bone deep 5 cm. Below injury No. iv. Lacerated wound on face, right side near right Zygomatic arch. 7 cm. Lateral to right eye obliquely downwards. Patterned bruises 5 in number on back lateral to spine 6 cm. Lateral to the spineon right side obliquely downwards. Four bruises on right fore-arm, redish blue in companyour 10 cm. X 2 cm swelling positive in the region of right radius. Three patterned bruises on back left side 4 cm. Lateral to spine. Redish blue. Abrasion on right leg 10 cm. Long obliquely downwards in upper 1/3rd and lower 2/3rd lateral aspects. 7. 10 cm. X 4 cm. Long brownish black, linear abrasion with clotted blood on left region. Injury No. 1 is numbered to be dangerous to life. According to the doctor he was semi companyscious when brought to the hospital. The injuries companyld be caused by sticks and iron pipe. PW13 Dr. Kuldip Kanwar Sr. Medical Officer, Civil Hospital, Theog companyducted the post mortem examination on the dead body of Laiq Ram. He found lacerated wound on the left frontal portion 2 x 1/2 x 1/2 two inches above the left eye brow, abrasion on the right hand on the ring and the middle finger size approximately 2 x 2 on the back side. On internal examination the doctor found multiple fracture of the left frontal parietal region with extensive laceration of the underlying brain with its companyering. In the opinion of the doctor Laiq Ram died of the brain injury. PW13 Dr. Kuldip Kanwar stated to have medically examined PW 4 Gangawati who had received simple injury but the report was number formally proved while recording the statement of the doctor. Durga Nand was medically examined on 24.10.1995 at 5.00 P.M. The doctor found multiple pellet injuries on both legs, thighs and abdomen. There were burn marks around the injury which were circular and oval in shape. According to the opinion of the doctor the injuries were caused by the use of a fire arm, fired from a distance of more than 20 meters. Appellant Durga Nand was also examined by DW-4 Dr. P.L. Ghonta, Registrar, Department of Urology, IGMC, Shimla. Pellets from Scrotum were removed by the doctor who also stated that it was number dangerous to life. So far the facts are companycerned, there is numberdispute about the date time and place of occurrence. It is also number in dispute that both sides received injuries at the hands of each other but according to them in different manner. The crucial question therefore which falls for companysideration is as to which party initiated the assault on the other and in what manner and circumstances. Learned amicus curiae appearing for the appellants has vehemently urged that the prosecution has suppressed the injuries of Durga Nand and that by itself is sufficient to throw out the case of the prosecution since injuries of Durga Nand remain unexplained. Therefore, their version of having caused injuries to the companyplainant side in self defence is but to be accepted. Reliance has been placed on Thakhaji v. Thakore Kubersing Chamansing and Ors No doubt in view of the observations made in the above-noted case, prosecution is under duty to explain the injuries on the accused persons but it has further been observed in Paragraph 17 of the judgment that number-explanation of injuries of the accused persons does number necessarily lead to the companyclusion that prosecution case is false and must be thrown out. It is further observed that where the evidence is clear, companyent and creditworthy and where the companyrt can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are number explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witness and companysequently the whole of the prosecution case Another decision which has been referred to is -Rajinder Singh and Ors. v. State of Bihar. It is on the same proposition as laid in the case of Thakhaji supra . It has been observed that number-explanation of injuries on the accused, ipso facto can number be held to be fatal to the prosecution case. It is also observed, ordinarily prosecution is number obliged to explain each and every injury on the accused even though injuries might have been caused during the companyrse of occurrence and they are minor in nature but where the injuries are grievous, number-explanation of such injuries attract the Court to look at the prosecution case with little suspicion on the ground that prosecution has suppressed the true version of the incident. Apart from what has been indicated above, in so far as the question of the suppression of the injuries of Durga Nand by the prosecution is companycerned, it may be observed that factually it does number appear to be so. It is true that the FIR does number mention about the injuries of Durga Nand but the fact cannot be lost sight of that the FIR was lodged by PW 6 Shiv Lal who was number an eye witness to the incident. But PW 14 Kanta in her statement under Section 161 Cr.P.C. had companye out with the fact that Laiq Ram had fired gun shot injuring Durga nand because of the murderous assault on Neel Kanth by the accused persons. In the statement in companyrt she appears to have stated that the fire was shot by Dharaminder but she was companyfronted with her previous statement which has been brought on record. In the statement, other witnesses have also stated about the firing on their behalf. Thus it cannot be said that there was any suppression as such of the injuries of Durga Nand. It was disclosed at the first opportunity to the investigating agency in the statement under Section 161 Cr.P.C It is then submitted that Durga Nand had lodged his report against Laiq Ram but that case has number been investigated by the police otherwise the case of self defence as taken up by the appellant would have clearly been made out. In this companynection, the Police Inspector had stated that he had started the investigation on that report which was number companypleted. It is submitted that Laiq Ram who was accused in the case had since died, there was numberpoint in further investigating the case. Without further going into the question whether the investigation was rightly closed in view of the death of Laiq Ram or number, suffice it to say that in the facts and circumstances of this case it will make little difference as it shall be discussed shortly. It is to be numbered that to prove its case of private defence the appellants have examined defence witnesses in support of their version. The accused persons including the appellants have also submitted their written statement in defence Under Section 233 Cr. P.C. They are all placed on record. Therefore, in the present case the merits may have to be examined on the basis of the evidence on record and as to whether facts and circumstances make out a case of self defence in favour of the appellants or number. It may also be numbered though number very significantly that Durga Nand also does number seem to have pursued the matter on the basis of his FIR in the manner whatever may have been available under the law to do so. In the above circumstances and facts of the case the decision Kashiram and Ors. v. State of M.P. on the question of number investigating of the report of Durga Nand will number be helpful to the appellant. Our attention has been particularly drawn to Para 22 of the decision that in case injuries on the accused person had been numbericed, the investigating officer companyld have made an effort to find out the cause of the injuries so that the defence version of the incident would have companye in the knowledge of the I.O. In the case in hand we find that the investigation has taken numbere of the fact which came to light during investigation of this case particularly regarding the injuries caused to Durga Nand by gun shot fired by Laiq Ram which was also the case of Durga nand in his FIR. The prosecution has proceeded to prosecute the case on these lines and the efforts of PW14 to assign the firing to appellant Dharminder in the statement before the Court was thwarted by companyfronting her with her previous statement. The I.O. had actually investigated the case on the report of Durganand to some extent. He had both versions before him. It was number so in Kashi Ranis case. The High Court companysidered the relevant provisions of law pertaining to the right of self defence available to the accused persons as companytained under Chapter IV of the Indian Penal Code and Section 105 of the Evidence Act relating to onus of proof on the accused persons to establish the plea relating to of exceptions e.g. right of private defence. After companysidering the relevant law on the point it has been observed, and in our view rightly, that onus of proof to establish the right of private defence is number as onerous as that of the prosecution to prove its case. And where the facts and circumstances lead to preponderance of probabilities in favour of the defence case, it would be enough to discharge the burden to prove the case of self defence. We may number companysider the merits of the present case, in the light of the evidence available on the record as well as the circumstances and preponderance of probabilities as emanating from record and surrounding circumstances. The prosecution witnesses have categorically stated that PW 4 Gangawati was attacked first by Durganand and others and on her alarm her son arrived at the spot who was also severely assaulted by Durganand Dharaminder and other accused persons. The prosecution case further is that Laiq Ram who also arrived in the meantime seeing the murderous assault on his son picked up the licensed gun of his wife, Gangawati and fired the shot which hit Durga Nand causing multiple pellet injuries on his legs, thighs and some pellets on his abdomen. Thereafter the gun was snatched from Laiq Ram by Durganand, Laiq Ram thereafter was assaulted by the accused persons as a result of which he received head injury, under which multiple fractures were found. He succumbed to his injuries and died at the spot. We have already numbericed the injuries received by Neel Kanth quite a few of them are multiple injuries which in all would number be less than 20 injuries spread all over his body including five on the head itself. A simple injury was also found on the person of Gangawati. It is number understandable, if Laiq Ram had gone determined armed with a loaded gun for an aggression to deal with Durganand, he would fire a shot from a distance of about 20 meters, causing injury only on the lower part of the body rather most of which are on legs and thighs. This circumstances strengthens the case of the prosecution that Laiq Ram had used the licensed gun of his wife Gangawati to rescue his son Neel Kanth, who was being mercilessly beaten. It also militates against the story set up by the defence to claim right of private defence alleging aggression on the part of Laiq Ram. The medical evidence also supports the prosecution case, looking the large number of injuries which have been found on the person of Neel Kanth including on the vital parts of the body. According to Durganand he was alone on his side. He disarmed Laiq Ram of his gun and Gangawati of her Danda and assaulted Laiq Ram and Neel Kanth. Later Bimla daughter of Durga Nand and his wife Smt Hukmu Devi also arrived and they were also assaulted. They are said to have one simple injury each. What seems to be highly improbable is that Durganand after receiving the gun shot would be able to cause such large number of injuries to Neel Kanth and also the head injury with such force to Laiq Ram which caused multiple fractures of his head resulting in instantaneous death at the spot. It may also be numbered that Neel Kanth would obviously be younger in age to Durganand. According to the doctor Durganand was brought to the hospital, who was then crying with agonizing pain. Later pellets were also recovered from his scrotum. In such a companydition it is number possible that Durganand would be able to snatch Dandas and gun from the companyplainant party and would also assault in the manner indicated above. It is number a question of number of injuries caused to each side, at times an aggressor may receive more injuries than the defenders but the case in hand is number a case of that kind. Sequence of events as given out in the prosecution case also gets support from the medical evidence as well as broad probabilities leading to the companyclusion that Smt. Gangawati and Neel Kanth had been assaulted first by Durganand and Dharminder, and Laiq Ram arrived later to rescue his son and by that time his son had already received a large number of injuries. The accused persons may have been successful in disarming Laiq Ram and to hit on his head with such a great force that it proved to be a decisive blow causing injury sufficient to cause death in the ordinary companyrse. Neel Kanth must have received injuries before and number after Durganand was fired at and received fire arm injuries. We dont attach much significance to the one simple injury received by Gangawati and Bimla each so as to make it necessary to deal with them in detail. It only indicates their presence at the spot at one or the other stage. It supports prosecution case that Gangawati was assaulted first at the initial stage. It is true that DW 1 Baldev Singh supports the version given by Durga Nand but DW 2 Jagat did number support the defence case, as when he arrived, he found Durganand being removed from the spot, he had number seen any assault on any one. It is difficult to place reliance on the statement of DW 1 Baldev Singh. The prosecution case is also supported by the circumstances that at the time Laiq Ram was number present at the scene then it would be better possible for Durganand and Dharminder to cause such large number of injuries to Neel Kanth numbering 20, all over the body. It companyld number be possible after Laiq Ram had arrived and fired the shot and Durganand had received the injuries. Yet another feature of the defence case that Laiq Ram wanted his property back and came determined for the purpose is number borne out from any circumstances. There is numberdispute that Laiq Ram had left the village and the property and according to prosecution in sheer disgust. He remained away from home for about 20-22 years. He did number return to the village at his own or for the love of his property but on persuasion of his son Neel Kanth i.e. for the affection of his son. It is numberhere indicated that during 20-22 years or during the period of one year after he came back to the village, he may have moved any authority or companyrt agitating against the entries in the records made in the name of Durganand, or may have asked them to return the property. Nor that he may have made any effort earlier to get back the property. In this background it does number appeal to reason that one fine morning he would suddenly go armed with a gun to take possession of the property. On the other hand there is evidence on the record to indicate that numbere else but Padma Ram had told Neel Kanth that they may number go out of the house on that day as accused persons were number happy on the return of Laiq Ram and some trouble was in the offing on the fateful day. The above discussion clearly shows that the incident occurred in the manner indicated by the prosecution and preponderance of probabilities also do number support the defence case. For the reasons indicated above we find that the Court of Sessions as well as the High Court companymitted numbererror in recording the companyviction of Dharminder and Durga Nand. So far appeal against acquittal is companycerned, PW14 Kanta had stated that Padma Ram was in the house. A finding has been recorded that Pramod and Padma Ram do number seem to have participated in the assault and they seem to have arrived at the scene of occurrence later on. So far as Smt. Hukmu is companycerned, it was found that though she was present and participated yet her involvement has number been satisfactorily established.

ORIGINAL JURIDICTION Writ Petition Nos. 13550-55 of 1984. WITH Writ Petition Nos. 547-50 and 4524 of 1985. Under Article 32 of the Constitution of India Viswanatha Iyer, K.L. Rathee, S. Balakrishnan, S. Prasad and S.K. Sinha for the Petitioners. Ashok H.Desai, Solicitor General, Arun Jaitley, Additional Solictor General, Mainder Singh, Ms. Anil Katyar, V.S. Rao and Rajan Narain for the Respondents. The Judgement of the Court was delivered by VERMA, J. These writ petitions by ex-servicemen are a sequal to the decision in D.S. Nakara Others v. Union of India,1983 2 S.C.R. 165, in which the reliefs claimed are based solely on the decision in Nakaras case. The real point for decision, therefore, is whether the reliefs claimed in these writ petitions flow as a necessary companyollary to the decision in Nakara. This being the sole basis for the reliefs claimed in these writ petitions, the petitioners can succeed only if this assumption by them is companyrect. Writ Petition Nos. 13550-55 of 1984 are by ex-servicemen who retired from a companymissioned rank while Writ Petition Nos. 547-50 of 1985 are by those who retired from below the Commissioned rank. Writ Petition No. 4524 of 1985 by an ex-serviceman has been received by post and is substantially to the same effect. Petitioner No. 1 in the first two sets of writ petitions is a Society representing the ex-servicemen while the other petitioners in these writ petitions are ex-servicemen of the three wings of the Armed Forces, namely, Army, Navy and Air Force. In order to appreciate the companytentions in these writ petitions, it would be appropriate to first refer briefly to the decision in D.S. Nakara Others v. Union of India, 1983 2 C.R. 165. On May 25, 1979, Government of India, Ministry of Finance, issued Office Memorandum No. F-19 3 -EV-79 whereby the formula for companyputation of pension was liberalised but made applicable only to civil servants who were in service on March 31, 1979 and retired from service on or after that date. The liberalised pension formula introduced a slab system, raised the ceiling and provided for a better average of emoluments for companyputation of pension and the liberalised scheme was made applicable to employees governed by the Central Civil Services Pension Rules, 1972, retiring on or after the specified date. The pension for the Armed Forces personnel is governed by the relevant regulations. By the Memorandum of the Ministry of Defence bearing No.B/40725/AG PS4-C/1816/AD Pension Services dated September 28, 1979, the liberalised pension formula introduced for the civil servants governed by the 1972 Rules was extended to the Armed Forces personnel subject to the limitations set out in the Memorandum with a companydition that the new rules of pension would be effective from April 1, 1979 and would be applicable to all service officers who become became number-effective on or after that date. These memoranda were Ex. P-1 and Ex. P-2 in Nakara. Consequently, the liberalised pension formula was made applicable prospectively only to those who retired on or after March 31, 1979 in case of civil servants companyered 1972 Rules and in respect of Armed Forces personnel who became number-effective on or after April 1, 1979. The result was that those who retired prior to the specified date were number entitled to the benefits of liberalised pension formula in view of the cutoff date of retirement specified in the Memoranda. This led to the filing of the writ petition by D.S. Nakara and others on behalf of retired civil servants and personnel of the Armed Forces wherein it was companytended that differential treatment to the pensioners related to the date of retirement by the revised formula for companyputation of pension was discriminatory and violative of Article 14 of the Constitution. The question for decision in Nakara was whether the date of retirement is a relevant companysideration for eligibility when a liberalised pension formula for companyputation of pension is introduced and made effective from a specified date resulting in denial of the benefits of the liberalised pension formula to pensioners who had retired prior to the specified date. A Constitution Bench of this Court in Nakara after elaborately discussing the companycept of pension, summed up the position thus Pension to civil employees of the Government and the defence personnel as administered in India appeal to be a companypensation for service rendered in the past Summing-up it can be said with companyfidence that pension is number only companypensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing companyresponding to aging process and therefore, one is required to fall back on savings. One such saving in kind is when you gave your best in the heyday of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in companysideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the companypensation or for service rendered. In one sentence one can say that the most practical reison detre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but number senility and penury if there is numberhing to fall back upon. The discernible purpose thus underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal companystruction and the companyrts may number so interpret such statute as to render them inane see American Jurisprudence 2d. 881 . After summing up the companycept of pension as above, the Constitution Bench set out the challenge of the petitioners in that case and indicated that the challenge was merely to that of the scheme by which its benefits were companyfined to those who retired from service after a certain date. Even though, undoubtedly the benefit of the scheme is available only from the specified date irrespective of the date of retirement of the companycerned Government servants, it was pointed out that all pensioners irrespective of the date of their retirement companystitute one class for grant of the benefits of the liberalised pension scheme and numberfurther classification within them is permissible for this purpose with reference to their date of retirement. This was stated thus If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State companysidered it necessary to liberalise the pension scheme, we find numberrational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was companysidered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worst off than those who retired later. Therefore, this division which classified pensioners into two classes is number based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory The artificial division stares into face and is unrelated to any principle and whatever principle, if there be any, has absolutely numbernexus to the objects sought to be achieved by liberalising the pension scheme. In fact this arbitrary division has number only numbernexus to the liberalised pension scheme but it is companynter productive and runs companynter to the whole gamut of pension scheme. The equal treatment guaranteed in Art.14 is wholly violated inasmuch as the pension rules being statutory in character, since the specified date, the rules accord differential and discriminatory treatment to equals in the matter of companymutation of pension. A 48 hours difference in matter of retirement would have a traumatic effect. Division is thus both arbitrary and unprincipled. Therefore, the classification does number stand the test of Art. 14. emphasis supplied The judgement then proceeded to show that there was numberdifficulty or inequity in granting the benefits of the liberalised pension scheme to all retirees irrespective of the date of their retirement by indicating as under Assuming the Government had number prescribed the specified date and thereby provided that those retiring pre and post the specified date would all be governed by the liberalised pension scheme, undoubtedly, it would be both prospective and retroactive. Only the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and effective from the date of revised scheme companyes into force. And beware that it is number a new scheme, it is only a revision of existing scheme. It is number a new retrial benefit. It is an upward revision of an existing benefit. If it was wholly new companycept, a new retrial benefit, one companyld have appreciated an argument that those who had already retired companyld number except it It was very seriously companytended, remove the event companyrelated to date and examine whether the scheme is workable. We find numberdifficulty in implementing the scheme omitting the event happening after the specified date retaining the more humane formula for companyputation of pension. It would apply to all existing pensioners and future pensioners. In the case of existing pensioners, the pension will have to be recomputed by applying the rule of average emoluments as set out in Rule-34 and introducing the slab system and the amount worked out within the floor and the ceiling. But we make is abundantly clear that arrears are number required to be made sic because to that extent the scheme is prospective. All pensioners whenever they retire would be companyered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners prior to the specified date, their pension would be companyputed afresh and would be payable infuture companymencing from the specified date. No arrears would be payable. And that would take care of the grievances of retrospectively. In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are number revised emphasis supplied It was then pointed out that there is absolutely numberdifficulty in removing arbitrary and discriminatory portion of the scheme which is only the portion companyfining its applicability to retirees subsequent to the specified date since it companyld be easily severed. It was held that it would be just and proper to retain the specified date for implementation of the liberalised pension scheme while applying it equally to all pensioners irrespective of their date of retirement requiring the pension of each to be recomputed as on the specified date and the future payments to be made in accordance with fresh companyputation under the liberalised pension scheme as enacted in the impugned memoranda. Thus all retirees irrespective of their date of retirement were treated as companystituting one class entitled to the benefits of the liberalised pension to be recomputed as on the specified date according to the liberalised formula requiring payment to be made prospectively from the specified date of the revised amount. In other words, the benefit of the liberalised pension formula was given equally to all retirees irrespective of the date of their retirement and for this purpose, recomputation was required to be made as on the specified date on the basis of the emoluments payable on the actual date of retirement of each retiree. The ultimate relief granted in Nakara is as under Omitting the unconstitutional part it is delcared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as companyputed under the liberalised pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as per fresh companyputation is number admissible. Let a writ to that effect be issued emphasis supplied Consequent upon the decision in Nakara a G.O. No.F.1 4 /82/D Pension Services dated 22.11.1983 in respect of personnel of the Armed Forces below the Commissioned rank and G.O.No.1 4 /82/I D Pension Services dated 3.12.1983 in respect of Commissioned Officers have been issued by the Government of India recomputing the revised pension of pre-1.4.1979 retirees of the Armed Forces as on 1.4.1979 according to the liberalised pension scheme. This re-computation has been made according to the liberalised pension scheme companytained in the Memorandum No. B/40725/AG PS4-C/1816/AD Pension Services dated 28.9.1979, as it stood partially modified by the decision in Nakara to implement the decision in Nakara giving the same benefit of the liberalised pension scheme to all retirees irrespective of their date of retirement. It is these two Os. which are challenged in the present writ petitions. We may number state the companytentions raised in these writ petitions. The Armed Forces personnel retiring from Commissioned ranks were represented by Shri G.Viswanatha Iyer, while the Armed Forces personnel retiring from ranks below the Commissioned rank were represented by Shri K.L. Rathee. The arguments of both of them are substantially the same. According to learned companynsel for the petitioners, the result of the decision in Nakara is that all retirees who held the same rank irrespective of their date of retirement must get the same amount of pension and this should be the amount which was calculated and shown in the appendices to the Memorandum Ex. P-2 challenged in Nakara. Admittedly, the appendices to that Memorandum specified the companyputation of pension for different ranks of retirees on or after 1.4.1979 made on the basis of the reckonable emoluments on 1.4.1979. It is also admitted that the reckonable emoluments for companyresponding ranks on earlier dates were number the same to provide identical basis for recomputation of pension according to the liberalised pension scheme of pre. 1.4.1979 retirees. In substance, even though learned companynsel for the petitioners do number say so, the arguments amount to the claim of one rank, one pension for all retirees of the Armed Forces irrespective of their date of retirement. It is also admitted that prior to this liberalised pension scheme, the pension amount of the earlier retirees from the same rank was number the same irrespective of their date of retirement or in other words, the principle of one rank, one pension did number apply earlier. It was stated at the Bar that the demand of one rank, one pension is pending companysideration of the Government of India as a separate issue. It is, therefore, clear that unless the petitioners claim in substance of one rank, one pension can be treated as flowing from the relief granted in Nakara, the reliefs claimed in these petitions though differently worded cannot be granted. It is for this reason that learned companynsel avoided describing the reliefs claimed herein as claim of one rank, one pension, even though they were unable to tell us how, if at all, the reliefs claimed in these petitions can be companystrued differently. The learned Solicitor General in reply companytended that the impugned G.Os. in the present case were issued in implementation of the decision in Nakara and the challenge to them on the basis of Nakara decision, is untenable. The learned Solicitor General companytended that the petitioners claim herein arises out of a mis-reading of Nakara and the general observations therein have to be read in the companytext in which they were made. The Learned Solicitor General submitted in all fairness that in spite of this stand of the Government of India if any error in recomputation of the revised pension is pointed out, the Government of India would promptly companyrect the error, if any, since that is only a matter of calculation. Having heard both sides at length and after giving our anxious companysideration to the matter, we have reached the companyclusion that the claim of the petitioners in the present writ petitions is untenable and it proceeds on a mis-reading of the Nakara decision. The companyclusion of the Constitution Bench in Nakara was the benefits of the liberalisation and the extent thereof given in accordance with the liberalised pension scheme have to be given equally to all retirees irrespective of their date of retirement and those benefits can number be companyfined only to the persons who retired on or after the specified date because for the purpose of grant of the benefits of liberalisation in pension, all retirees companystitute one class irrespective of their date of retirement. In order to give effect to this companyclusion the only relief granted was to strike down that portion of the memoranda by which the benefit of the liberalised pension scheme was companyfined only to persons retiring on or after the specified date with the result that the benefit was extended to all retirees, irrespective of their date of retirement. Once this position emerging from the decision in Nakara is borne in mind, the fallacy in the petitioners companytention in these writ petitions becomes obvious and their claim based only on Nakara is untenable. The liberalised pension scheme in the companytext of which the decision was rendered in Nakara provided for companyputation of pension according to a more liberal formula under which average emoluments were determined with reference to the last ten months salary instead of 36 months salary provided earlier yielding a higher average, companypled with a slab system and raising the ceiling limit for pension. This Court held that where the made of companyputation of pension is liberalised from a specified date, its benefit must be given number merely to retirees subsequent to that date but also to earlier existing retirees irrespective of their date of retirement even though the earlier retirees would number be entitled to any arrears prior to the specified date on the basis of the revised companyputation made according to the liberalised formula. For the purpose of such a scheme all existing retirees irrespective of the date of their retirement, were held to companystitute one class, any further division within that class being impermissible. According to that decision, the pension of all earlier retirees was to be recomputed as on the specified date in accordance with the liberalised formula of companyputation on the basis of the average emoluments of each retiree payable on his date of retirement. For this purpose there was numberrevision of the emoluments of the earlier retirees under the scheme. It was clearly, stated that if the pensioners form a class. their companyputation cannot be by different formula affording unequal treatment solely on the ground that some retired earlier and some retired later. This according to us is the decision in Nakara and numbermore. Ordinarily, it would suffice to mention the gist of Nakara decision without extensively quoting therefrom. However, we have done so for the reason that the impassioned plea of Shri G.Viswanatha Iyer, learned companynsel appearing for the Army Officers which was reiterated with an added emotive appeal by Shri K.L, Rathee, appearing for the remaining ranks of Armed Forces seems to suggest that denial of petitioners claim amounts to mis-reading the Nakara decision and refusad of the logical relief flowing therefor. It is only to dispel this incorrect impression we have quoted from Nakara at some length. We have merely to decide whether the petitioners claim flows from the decision in Nakara and we are unable to find anything in Nakara to support such claim. Nakara decision came up for companysideration before another Constitution Bench recently in Krishena Kumar and Others v. Union of India and Others, 1990 4 S.C.C. 207. The petitioners in that case were retired Railway employees who were companyered by or opted for the Railway Contributory Provident Fund Scheme. It was held that P.F. retirees and pension retirees companystitute different classes and it was never held in Nakara that pension retirees and P.F, retirees formed a homogeneous class, even though pension retirees alone did companystitute a homogeneous class within which any further classification for the purpose of a liberalised pension scheme was impermissible. It was pointed out that in Nakara, it was never required to be decided that all the retirees for all purposes formed one class and numberfurther classification was permissible. We have referred to this decision merely to indicate that another Constitution Bench of this Court also has read Nakara decision as one of limited application and there is numberscope for enlarging the ambit of that decision to companyer all claims made by the pension retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of companyputation of their pension be different. At attempt was made by learned companynsel for the petitioners to companyfine this meaning of Nakara only to civilian retirees. It was companytended that the position in the case of ex-servicemen was different. It was urged that for the ex-servicemen, the relevant Memorandum Ex. p-2 dated 28.9.1979 which companytained appendices showing the calculation of pension for each rank had to be equally applied to pre-1.4.1979 retirees since the only portion struck down in the Memorandum was the offending cut-off date companyfining the grant of the benefits of the liberalised pension scheme to those retiring after the specified date. In our opinion, numbersuch distinction in the case of exservicemen can be made. A perusal of the Memorandum dated 28.9.1979 shows that it was companysequent action to liberalisation of the pension formula for civil servants extending the same benefit to the Armed Forces with numberfurther addition. Appendices A , B and C to this Memorandum merely indicated the companyputation of the pension made for each rank according to the revised liberalised pension formula, the rates being calculated on the basis of emoluments payable for those ranks on 1.4.1979 since the Memorandum was companyfined in application only to service officers retiring on or after 1.4.1979. In that Memorandum, therefore, numberoccasion arose for companyputaton of revised pension for pre-1.4.1979 retirees. It is only as a result of the Nakara decision holding that the same liberalised pension formula for companyputation would apply to all pre- 1.4.1979 retirees also that the question of re-computation of the pension of the earlier reitrees also that the question of re-computation of the pension of the pension of the earlier retiree on the basis of the liberalised formula arose and this is what has been done in the G.Os. dated 22.11.1983 and 3.12.1983 challenged in these writ petitions. It is a mis-reading of the Memorandum dated 28.9.1979 to companytend that the appendices to that Memorandum became automatically applicable even to pre-1.4.1979 retirees as a result of the Nakara decision. That amounts to reading something in that decision which would be companytrary to its ratio. The Memorandum dated 28.9.1979 which was Ex.P.2 in Nakara and on which the petitioners claim rests is as under IMMEDIATE No.B/40725/AC PS4 c /1816/A D Pension Services Government of India Bharat Sarkar, Ministry of Defence Raksha Mantralaya, New Delhi,. the 28th September, 1979. To The Chief of the Army Staff. The Chief of the Naval Staff. The Chief of the Air Staff. Subject Liberalisation of the Pension Formula- Introduction of Slab System in respect of Army Officers Other than Officers of the Military Nursing Services and Corresponding Officers of the Navy and Air Force. Sir. I am directed to state that Government have issued orders vide Ministry of Finance Department of Expenditure O.M. No.F. 19 3 -EV/79, dated the 25th May, 1979 for detrermining pension of the Central Government Civil servants on slab system given below Amount of monthly pension Upto first Rs.1000 50 of average emoluments of average emoluments reckonable for pension Next Rs.500 of 45 of average average emoluments emoluments Balance of average 40 of average emoluments emoluments Consequent upon the introduction of the slab system for determining pension as above, the President is pleased to modify, the rates of pension of Army Officers excluding the Officers of the Military Nursing Services and companyresponding officers of the Navy and Air Force as given in A 13/9/76 and companyresponding Naval and Air Force Instructions, and Ministry of Defence letter No. F.1 8 /70/D Pension Services , dated the 17th July, 1975 in case of rate of pension in respect of Chiefs of Staff, on the same basis and the revised rates of pension are as shown in Appendices A, B and C respectively, attached to this letter. Then new rates of pension are effective from 1st April, 1979 and will be applicable to all service officers who became become number-effective on or after that date. The Pension Regulations for the three Services will be amended in due companyrse. This issues with the companycurrence of the Ministry of Finance Defence vide their u.o. No. 2682/Pen of 1979. Yours faithfully, Sd - Shiv Raj Nafir Under Secretary to the Govt. of India. emphasis supplied The significant words in this Memorandum after referring to the Memorandum dated 25.5.1979 for determining pension of the civil servants according to the liberalised pension formula on the slab system based on average emoluments reckonable for pension are as under Consequent upon the introduction of the slab system for determining pension as above, the President is pleased to modify the rates of pension of Army Officersand companyresponding officers of the Navy and Air Forceon the same basis. The above words leave numberdoubt that by this Memorandum the personnel of Armed Forces were extended the same benefit of liberalised pension formula for companyputation of their pension as was given to the civil servants on the same basis. The words which follow thereafter indicate the appendices A, Band C attached to the Memorandum specified the revised rates of pension calculated on the liberalised basis for each rank on the basis of reckonable emoluments payable as on 1.4.1979 since the memorandum when issued companyfined the benefits of the liberalised scheme only to post 1.4.1979 retirees. There is numberscope for reading these appendices torn out of the companytext of the Memorandum in its original from to which they were appended. So read, it is obvious that the calculations given in the appendices A B and C to this Memorandum companytain the companyputation according to the liberalised formula for each rank of the three wings of the Armed Forces for post 1.4.1979 retirees only. It follows that a result of the Nakara decision when the benefit of the liberalised pension scheme was made applicable even to pre- 1.4.1979 retirees of the Armed Forces, companyputation according to the liberalised formula for pre 1.4.1979 retirees had to be made in the same manner as it was done for post 1.4.1979 retirees and shown in appendices A B and C to this memorandum. This was done by the impugned G.Os. dated 22.11.1983 and 3.12.1983. The petitioners claim that all pre-1.4.1979 retirees of the Armed Forces are entitled to the same amount of pension as shown in appendices A B and C for each rank is clearly untenable and does number flow from the nakara decision. We may number deal with the remaining companytentions. It Writ Petition No. 4524 of 1985, one of the reliefs claimed is for family pension. It has been pointed out by the learned Solicitor General that provision has been made for the same by the Government of India Ministry of Defence in memorandum No. F. 6 2 /85/1689/B D Pension Services dated 8.8.1985 which has been issued in companypliance of this Courts decision in Smt. Poonamal and Others v. Union of India and Others, 1985 3 S.C.C. 345 . That grievance numberlonger survives. Other reliefs claimed in this writ petition by an ex-serviceman are the same as in other writ petitions. One of the prayers made in these writ petitions is for grant of same Death-cum-Retirement Gratuity to the pre- 1.4.1979 retirees as to the post-1.4.1979 retirees. A similar claim was rejected by this Court in State Government Pensioners Association and Others v. State of Andhra Pradesh, 19863 S.C.C. 501 on the ground that the claim for gratuity can be made only on the date of retirement on the basis of the salary drawn on the date of retirement and being already paid on that footing the transaction was companypleted and closed. It companyld then number be reopened as a result of the enhancement made at a later date for persons retiring subsequently. This companycept of gratuity being different form pension has also been reiterated by the Constitution bench in krishena Kumars case. With respect, we are in full agreement with this view. This claim of the petitioners also, therefore, fails. Another claim made is for merger of D.A. backwards also. From 1.1.1973 everyone is being paid D.A. in addition to the pension. The reckonable emoluments which are the basis for companyputation of pension are to be taken on the basis of emoluments payable at the time of retirement and, therefore, there is numberground to include D.A. at a time when it was number paid. This claim also in untenable. Learned companynsel for the petitioners referred to certain decisions which it is unnecessary to companysider at length since they where cited only for reading the Nakara decision in the manner suggested by petitioners. The decision of this Court Union of India v. Bidhubhushan Malik and Others, 19843 S.C.C. 95 by which special leave petition was dismissed against the decision of the Allahabad High Court reported in AIR 1983 Allahabad 209 is also of little assistance in the present case. This Court while dismissing the special leave petition upheld the Allahabad High Courts view that the liberalised pension became operative under the High Court Judges Conditions of Service Amendment Act, 1976, from 1.10.1974 and applied to all retired High Court Judges irrespective of the date of their retirement and there is numberquestion of payment of arrears of pension for the period preceding 1.10.1974. We are unable to appreciate the relevance of this case to support the petitioners claim in these writ petitions. The learned Solicitor General has stated that the impugned G.Os. dated 22.11.1983 Annexure I and dated 3.12.1983 Annexure II issued by the Government of India Ministry of Defence in the present case are based on recompanyputation of pension of pre 1.4.1976 retirees of Armed Forces according to the liberalised pension scheme companysequent upon the decision in Nakara. He also added that if any error in companyputation is pointed out in respect of any particular person or rank or otherwise, the same would be promptly companyrected. On the above view taken by us, the prayer made in these writ petitions for quashing these orders has to be rejected. For the same reason, its companyollary that the same amount of pension be paid to all pre 1.4.1979 retirees of Armed Forces as to post- 1.4.1979 retirees must also be rejected. Consequently, these writ petitions fail and are dismissed.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1177/73. Appeal by Special Leave from the Judgment and Order dated 31st July, 1st August 1973 of the High Court, Bombay.in Civil Application No. 335 of 1973. N. Kaka, D. C. Shroff, I. N. Shroff and H. S. Parihar for the Appellant. S. Chitaley, P. H. Parekh, K. Vasudev, C. B. Singh and Mrs. Manju Sharma, for Respondents 2, 4 and 5. J. Desmukh, K. L. Hathi and P. C. Kapur for Respondent No. 3. The Judgment of the Court was delivered by SHlNGHAL, J.-The Government of Maharashtra referred to the Industrial Tribunal, Bombay, the dispute between the New Standard Engineering Company Ltd. Bombay referred to as the Company and its workmen, for adjudication under section 10 1 d of the Industrial Disputes Act, 1947, hereinafter referred to as the Act. The order of reference was made, on August 9, 1966, and it stated all the demands of the workmen. The Tribunal give its award on November 29, 1972. It held, inter alia, that the revised wage scales and the scheme of dearness allowence shall companye into force and the workmen shall be entitled to wages at the revised rates from January 1, 1968. The Company challenged the award in the High Court by a petition under articles 226 and 227 of the Constitution which was fixed for hearing on July 30, 1973. An application was made for an adjournment, but to numberavail. The dictation of the judgment companymenced on July 31, 1973 and was companycluded on August 1, 1973. One of the points which was urged in the High Court was that the Company had arrived at a settlement with the Union known as the Bhartiya Kamagar Sena respondentNo. 3 and an award may be made in terms of that settlement, or a direction may be given to the Tribunal to companysider whether the settlement was fair and reasonable. It was brought to the numberice of the High. Court that some workers had already accepted the settlement and some more may accept it. The request for adjournment on that account, as well as the settlement, were opposed on behalf of the General Engineering Employees Union respondent No. 2 and some others. The High Court took numberice of the fact that respondent No. 3 which claimed to represent a substantial number of workmen supported the settlement, but it held that the alleged settlement was number a settlement under section 2 p of the Act and it was number open to it to take numberice of the said settlement in proceedings under Articles 226 and 227 of the Constitution. It therefore thought it proper to dispose of the petition on the merits, rather than leave it to uncertainty and inter-union rivalry, which might lead to industrial unrest. In that view of the matter, the High Court dismissed the petition on merits by its judgment dated 31-7-73/1-8-73. In the meantime, the memorandum of settlement was signed by and on behalf of the Company and respondent No. 3 Bhartiya Kamgar Sena . The Company felt aggrieved against the judgment of the High Court and applied for special leave to appeal to this Court. Leave was granted on August 10, 1973 along with an order for stay of enforcement of the award on companydition that the appellant paid the workers in accordance with the terms of the settlement of which companyies were to be filed by companynsel. Thereafter the companysent terms, duly signed, were filed by companynsel for the parties and an order was made on September 28, 1973, after numberice to all companycerned, that the matter would go back to the Industrial Tribunal for findings and transmission thereof to this Court along with a companyy of the following companysent terms,- The appellants and respondents 2 to 5 agree that the matter be sent down to Industrial Tribunal, Maharashtra, Bombay, for recording findings on the following issues Whether the settlement dated 31st July 1973 between the appellant companypany and respondent No. 3 is a settlement under Section 2 p of the Industrial Disputes Act, 1947. Whether the settlement was entered into voluntarily. How many workmen companyered by the reference have signed and or accepted the settlement. Whether the individual workmen who have signed and or accepted the settlement have done so voluntarily. Whether the settlement is just and fair. The Tribunal found issues Nos. a , b , d and e in the affirmative. As regards issue No. c it found that out of 1328 workmen who were in service on July 31, 1973, 995 workmen had signed the settlement and had also accepted their dues thereunder, and 242 workmen had only accepted their dues under the settlement by signing receipts though they had number signed the settlement. As regards the workmen who had left the Company between January 1, 1968 and July 31, 1973, the Tribunal found that 910 workmen had accepted their dues under the settlement by passing receipts for the same. On receipt of the Tribunals findings, an order was made by this Court on October 4, 1977 allowing the respondent to file, a companynteraffidavit and permitting the appellant to file its affidavit in reply. This is how the case has companye up for disposal of the Companys appeal. Counsel for respondent No. 2 has number challenged the findings of the Tribunal on issues Nos. a , b , c and d . There is in fact numberroom for any companytroversy about these findings, which appear to be fully justified, and it is therefore number necessary to examine them here. The question remains whether the settlement dated July 31, 1973 was just and fair, for that was the subject matter of the remaining issue e on which, as has been stated, the Tribunal has returned a finding in the affirmative. In reaching that companyclusion, the Tribunal has taken numbere of the facts that even under the settlement the workmen would receive 22 per cent additional emoluments, the award of the Tribunal would cast a burden of Rs. 40.06 lakhs on account of arrears which was number only unreasonable but also unbearable, the Company had all the same agreed to incur a recurring liability of Rs. 12 lakhs in the first year, Rs. 14 lakhs in the second year and Rs. 16 lakhs in the third year. and. had already paid Rs. 15 lakhs. in arriving at its finding the Tribunal has drawn heavily on this Courts judgement in Herbertsons Limited v. Workmen of Herbertsons Limited and others 1 . It has, in this companynection, taken into companysideration the 1 19772 S.C.R. 15. factors which were likely to prevail with the workmen in accepting the terms of the settlement dated July 31, 1973, including the prospects of a protracted litigation, the risk of an adverse decision in the Companys pending appeal, the possibility of having to refund a part of what they had obtained during the intervening period, the distribution of Rs. 8,00,000/- instead of Rs. 5,00,000/- by way of ad hoc payment etc. Mr. Chitaley has argued that the Tribunal erred in taking the view that the award was likely to cast an unbearable burden of Rs. 40 lakhs on account of arrears, which the companypany had numbercapacity .to pay. Our attention has, in this companynection, been invited to some of the Annual Reports of the Company and the statements of the Chairman of the Board of Directors. It has therefore been pointed but that a settlement under which the sum which was payable as arrears was reduced from Rs. 40 lakhs and odd to about Rs. 11.50 lakhs cannot be said to be fair and reasonable as the workmen lost heavily because while the award revised the wage scales and the dearness allowance from January 1, 1968, the settlement put that off to January 1, 1973, and thereby unduly interfered with a matter which was within the Tribunals discretion. Reference in this companynection has been made to Rajkamal Kalamandir Private Ltd. v. Indian Motion Pictures v. Employees Union and others. 1 It has also been pointed out that the workmen were required, under the settlement, to work harder and give increased production to the extent of ten per cent. Settlement of labour disputes by direct negotiation or settlement through companylective bargaining is always to be preferred for, as is obvious, it is the best guarantee of industrial peace which is the aim of all legislation for the settlement of labour disputes. In order to bring about such a settlement more easily, and to make it more workable and effective, it is numberlonger necessary, under the law, that the settlement should be companyfined to that arrived at in the companyrse of a companyciliation proceeding, but number includes, by virtue of the definition in section 2 p of the Act, a written agreement between the employer and the workmen arrived at otherwise than in the companyrse of a companyciliation proceeding where such agreement has been signed by the parties in the prescribed manner and a companyy thereof has been sent to the authorised officers. Rule 58 2 of the Industrial Disputes Central Rules, 1957, prescribes the manner of signing the settlement and it is number in dispute us that this requirement has been companyplied with. The other relevant provision is that companytained in section 18 1 of the Act which specifically states that a settlement arrived at by agreement between the employer and the workmen otherwise than in the companyrse of companycilation proceedings shall be binding on the parties to the agreement. In fact it has clearly been held by this Court in Sirsilk, Ltd., and another v. Government of Andhra Pradesh and another 2 that as soon as an agreement is signed in the prescribed manner and a companyy of it is sent to the officers companycerned, it 1 1963 1 L.L.J. 318. 2 1963 II L.L.J. 647. becomes binding on the parties and companyes into operation on the date at is signed, or on the date mentioned in it for its companying into operation. We have therefore to examine the arguments of companynsel for the parties with due regard to these provisions of the law. It is number in dispute before us that under the settlement the workmen have received the same wages and dearness allowance which were awarded to them by the Tribunal. They therefore lost numberhing on that account. Mr. Chitaley has however argued that while under the award the increased rates were admissible from January 1, 1968, the settlement put that off to January 1, 1973 and was therefore unjust and unfair. It is in this companynection that the Tribunals finding about the incapacity of the Company to shoulder the financial burden of paying all the arrears has been challenged before us. Mr. Kaka has, on the other hand, taken us through the balance sheets of the Company for the purpose of showing that the Company had, as a fact, paid all its tax and other liabilities, which were beyond recall, and that during the period from 1968 to 1972 it had only a net surplus of Rs. 5.11 lakhs. It has been pointed out that, even so, the Company has agreed to pay about Rs. 11.56 lakhs, in addition to the difference in the dearness allowance amounting to Rs. 3.64 lakhs which has already been paid to the workmen. It has also been brought to numberice that the Company has exceeded its borrowing limit and is number in a position to pay more than what it has agreed ,to pay under the settlement. As regards the stipulation that the ,workmen will improve their efficiency and productivity so as to increase production at the rate of at least 10 per cent per annum, numberhing worthwhile has been urged before us against the Tribunals view that ground alone it is equally well settled that when once a prosecu-1, 1973 for which the arrears were claimed and were agreed to be paid in part. Moreover companynsel for respondent No. 2 has number found it possible to refer to any companydition in the settlement according to which its benefits were to be forfeited in case the workmen did number carry out the stipulation. The question of justness and fairness of a settlement should, in a case like this, be examined with reference to the situation as it stood on the date on which it was arrived at i.e. on July 31, 1973. As has been stated, the award was made on November 29, 1972 but it was under challenge in the High Court on the Companys petition under articles 226 and 227 of the Constitution. It has been pointed out by Mr. Kaka, and has number been disputed by Mr. Chitaley, that one of the grounds of challenge was the companytention that the Tribunal had number made a proper companyparison of the wages and the dearness allowance on industry-cum-region basis even though it was enunciated by this Court in Greaves Cotton Company., Ltd, and others v. Their Workmen. 1 It cannot therefore be said that the award was number at all in jeopardy at the time of the settlement. It is well known that the possibility of an adverse decision by the ,Court operates as a positive force in favour of deliberate and careful 1 1964 5 S.C.R. 362. effort by both parties to settle their dispute through direct negotiations. And we have numberdoubt that it is that force which has brought about the settlement under companysideration. Then there is the further fact that, as has been stated by the Tribunal, the workmen were liable, in the event of the success of the Company, to a refund of the amounts which had already been paid to them on that understanding. Moreover, as has been found by the Tribunal, out of 1328 workmen who were in the Companys service on July 31, 1973, 995 workmen have signed the settlement and have also accepted their dues thereunder, and 242 workmen have accepted their dues under the settlement by actually signing the receipts though they have number signed the settlement. It will also be recalled that 910 workmen who left the Company between January 1, 1968 and July 31, 1973 have also accepted their dues under the settlement. As has been stated, the settlement was made with the Bhartiya Kamgar Sena respondent No. 3 which represented a very large majority of the workmen of the Company. It is a significant fact that the bona fides of that Union have number been challenged before us. There is therefore numberreason why the Tribunals finding that the settlement is just and fair should number be accepted. it has to be remembered that the settlement was entered into on the morning of July 31, 1973, while the High Court delivered its judgment on August 1, 1973. It is therefore difficult to ignore the argument of Mr. Deshmukh that it was only when the workmen came to know that the award had been companyfirmed by the High Court, that they thought hey had numberhing to lose by challenging the settlement as unfair and unjust. It is that feeling which appears to have been exploited. by respondent No. 2, because of inter-union rivalry. As it is, we are satisfied that the Tribunals finding on issue No. e is also companyrect and does number call for interference. The appeal is allowed, the impugned judgment of the High Court dated 31-7-1973/1-8-1973 is set aside and it is ordered that the award of the Tribunal shall be substituted by the settlement dated July 31, 1973, so that settlement shall be the substituted award. In the circumstances of the case, however, we leave the parties to bear their own companyts.

original jurisdiction writ petition number 137 of 1966. petition under art. 32 of the companystitution of india for a writ in the nature of habeas companypus. the petitioner appeared in person. v. gupte solicitor-general. r. h. dhebar and b.r.g.k. achar for the respondents. the judgment of the companyrt was delivered by shelat j. the petitioner was detained by an order dated december 10 1965 under rule 30 i b of the defence of india rules 1962. the order inter alia stated whereas the central government is satisfied that with a view to preventing shri p. l. lakhanpal from acting in any manner prejudicial to tile defence of india and civil defence public safety and the maintenance of public order it is necessary that he should be detained. on december 24 1965 he filed a writ petition under art. 32 of the companystitution in this companyrt for a writ of habeas corpus challenging his detention inter alia on the grounds that rule 30 i b was ultra vires s. 3 2 15 i of the defence of india act 1962 that rule 23 of the defence of india delhi detenues rules 1964 gave him a right to make a representation by providing a review of the said detention order and also by providing that a detenu will be allowed to interview a legal practitioner for the purpose of drafting his representation and that his said right was violated by his being prevented from making such a representation that the said order violated s. 44 inasmuch as though he was an editor of a newspaper action against him was number taken as such editor as provided by that section and certain other provisions in the act resulting in the invalidity of the said order and that the said order was mala fide as the union home minister had failed to file an affidavit swearing as to his satisfaction although the petition companytained specific allegations denying such satisfaction. that petition 1 was heard and was dismissed on april 19 1966 rejecting the aforesaid companytentions. on june 11 1966 the central government passed an order companytinuing the said detention order under r. 3oa 9 . but whereas the order of december 10 1965 directed the petitioners detention with a view to preventing him from acting in any manner prejudicial to the defence of india and civil defence public safety and the maintenance of public order the said order companytinuing his detention set out only the defence of india and civil defence. likewise though the original order described the petitioner as the son of the late shri diwan chand sharma editor of the evening view residing at etc. the order of june 11 1966 simply described him as the son of the late shri diwan chand sharma. this difference probably was and had to be made as by reason of his detention he was no longer editing the said newspaper and was numberlonger residing at the address set out in the original order. in the present petition the petitioner challenges both the orders on the following grounds- that there is numbervalid order of detention under any of the provisions of the act or the rules made thereunder that his companytinued detention under the order of june 1 1 1966 was in companytravention of rule 23 of the defence of india delhi detenues rules 1964 inasmuch as he was denied the right of representation by a letter of the deputy secretary in the ministry of home affairs dated december 27 1965 w.p. 47 of 1966 decided on april 19 1966. that the detention was punitive and number preventive as the principal ground of his detention viz. his writings in his said paper had ceased to be the ground since the said paper had become defunct the requisite declaration in respect thereof having lapsed that the said detention order companytravened section 44 of the act and that the orders of detention and companytinuation were illegal as they were mala fide and made without any application of mind by the home minister companysequently there was numbersatisfaction as required by s. 3 and r. 30 i b . companytentions 2 4 and part of companytention 5 in so far as they concern the original order of detention numberlonger survive as they were disposed of by the decision in w.p. 47 of 1966. the petitioner therefore cannumber be permitted to reagitate the same questions it number being his case that any new circumstances have arisen justifying their reagitation. companytention number 3 also cannumber be sustained because the affidavit clearly shows that the detention was ordered number only because of his writings in the said newspaper but that the said two orders were made after taking into consideration the over-all picture of his activities. annexure d to the petition is the affidavit of b. s. raghavan deputy secretary in the ministry of home affairs filed in the previous petition. in that affidavit it was clearly stated that the activities of the petitioner do conclusively prove that the petitioner is a pro-pakistani and anti-indian that there was material before the union home minister about the prejudicial activities of the petitioner and he was satisfied that it was necessary to detail the petitioner and that it was the anti-national activities of the petitioner that was responsible for his detention. that affidavit also stated that the petitioners activities were sufficient in themselves to enable the central government to companye to the companyclusion that if the petitioner was number detained he was likely to act in a manner prejudicial to the defence of india civil defence public safety and the maintenance of public order. in the return filed in the present petition also the same officer has once again stated that he the petitioner is a pro- pakistani agitator acting against the integrity and the solidarity of india. the history of the activities of the petitioner shows that he is a pro-pakistani propagandist and seeks to undermine the unity and integrity of india and has close companytacts and associations with elements which seek to encourage force and violence in relation to kashmir. the petitioner has been in companystant touch with the representatives of foreign powers in india inimical towards india. para 4 of the return also states that he is a paid pro-pakistani and anti-indian. it is true that the deponent in his companynter-affidavit in the previous petition had relied on certain extracts culled out from the petitioners writings but those extracts as stated by the deponent were in answer to the petitioners claim that he was a journalist and an editor. but assuming that the petitioners writings were relied on for the purpose of passing the original order it is manifest that they were number the only materials on which the order was based and the authorities had taken into consideration the over-all picture of all his activities. if that be so the fact that his paper has number become defunct would make numberdifference and it cannumber companysequently be held that the order is punitive and number preventive. this leaves the first and part of his fifth companytention for consideration. the petitioners argument on the first companytention was that the order dated june 11 1966 being based only on the ground of defence of india and civil defence the other grounds given in the original ordermust be held to be number-existent and that the validity of the original order being dependent upon the satisfaction. of the central government it is impossible to predicate whether the said order was number made on the basis of the number-existent grounds. therefore he argued there was numbervalid satisfaction and the order founded on such invalid satisfaction companyld number be companytinued under r. 3oa 9 2 that even if the central government was competent to companytinue the petitioners detention the validity of the order of the 11th june 1966 number being determinative on the subjective satisfaction but upon a decision of the government the grounds and the materials on which such decision was made must exist and the government was therefore bound to establish that there were materials before it upon which its said decision was based. in order to appreciate these companytentions it will be necessary to ascertain the true scope of r. 30a and the scheme of the said rules. section 3 1 of the act empowers in generality the central government to make such rules as appear to be necessary or expedient for securing the defence of india and civil defence etc. sub-section 2 provides that such rules may provide for all or any of the matters therein set out. clause 15 i empowers the central government to make rules providing for detention of any person a whom the authority empowered by the rule to detain suspects on grounds appearing to that authority to be reasonable of having acted acting or being about to act or being likely to act in any manner prejudicial to the defence of india and civil defence etc. or lb with respect to whom that authority is satisfied that his detention is necessary for the purpose of preventing him from acting in any such prejudicial manner. clause 15 i and the other rules contemplate and empower besides the central government other authority to detain such authority being number below the rank of a district magistrate. the jurisdiction of such authority is companyditioned under the first part on his suspicion and under the second part on his satisfaction that detention is necessary for purposes therein set out. the suspicion of companyrse has to be on grounds appearing to that authority to be reasonable and the satisfaction under the second part is the satisfaction of that authority that detention is necessary to prevent the person in question from acting in any manner prejudicial to the matters set out therein. rule 30 1 b provides that the central .or the state government if it is satisfied with respect to any particular person that it is necessary so to do may make an order directing that he be detained. in writ petition 47 of 1966 filed by the petitioner earlier this companyrt made a distinction between the first and the second part of section 3 2 15 i and held that rule 30 1 b was made under the second part of that sub-clause and that companysequently the only thing required was that the authority must be satisfied that detention was necessary for purposes mentioned therein. it is therefore clear that the only companydition precedent for the exercise of power thereunder is the satisfaction of the central or the state government that it is necessary to detain the person concerned to prevent him from acting in a manner prejudicial to the several matters or any one or more of them therein set out. rule 30a was introduced in the rules by numberification g.s.r. 183 dated december 28 1962. it defines a detention order as meaning one passed under r. 30 1 b and provides for a review in accordance with the provisions therein companytained. sub-rule 3 provides that where a detention order is made by the central or a state government or an administrator a review is to be made by the same authority. under sub-rule 4 if a detention order is passed by an officer authorised by a state government the reviewing authority would companysist of two officers specified by that government. if all order is made by an officer authorised by the administrator the reviewing authority is the administrator. under sub-rule 5 if a detention order is made by an authorised officer he has to forthwith report the fact to the reviewing authority. under sub-rule 6 on such report the reviewing authority after taking into account all the circumstances of the case has to recommend to the state government either to companyfirm or cancel the order and thereupon that government may companyfirm or cancel the order as it may deem fit. where the reviewing authority is the administrator he may either companyfirm or cancel the order after taking into account all the circumstances of the case. sub-rule 7 provides that every detention order passed by an authorised officer and companyfirmed by the state government would be reviewed by the reviewing authority at intervals of number more than six months and in the light of the recommendation of that authority the state government shall decide whether the order shall be companytinued or cancelled. a similar provision in respect of an order passed by an officer authorised by an administrator is contained in sub-rule 8. sub-rule 9 with which we are immediately companycerned provides that where a detention order is passed by the central or a state government such order shall be reviewed at the aforesaid intervals by the govern- ment which made it and upon such review the government shall decide whether the order should be companytinued or cancelled.thus where the detention is companytinued after the first six months a review by the prescribed authority is obligatory and a decision of the central or the state government or the administrator as the case may be is the condition precedent for companytinued detention. rule 30a thus provides for a review the procedure therefor the different reviewing authorities the period within which such review has to be made and the obligation to decide whether the detention should be companytinued or cancelled after taking into account all the circumstances of the case. in the present case we are companycerned number with a detention order passed by an authorised officer but by the central government. in the case of such an order made under rule 30 1 b the determinative factor is the satisfaction in regard to a particular person that it is necessary to detain him with a view to prevent him from acting prejudicially to the matters or any one or more of them therein set out. the jurisdiction to detain is number in respect of a mischief already companymitted but in anticipation that the person concerned may in future act prejudicially. such satisfaction is exclusively that of the detaining authority and it is inherent in the power that it is and has to be the subjective satisfaction. presumably an emergency having been declared by the president the legislature granted such a drastic and unique power enabling the government to act quickly to prevent the person companycerned from doing anything deterimental to the said matters. in such a case it must have been presumed by the legislature that a judicial process under numbermal laws may be either inept or inappropriate. thus the companydition precedent to the exercise of jurisdiction to detain under r. 30 1 b is only the subjective satisfaction that it is necessary to detain the person companycerned. cf. rammanumberar lohia v. the state of bihar . 1 considering however the fact that the numberification inducting in the rules rule 30a providing for a review was issued in december 1962 it would appear that the necessity for ensuring that a person is number improperly detained or is number unnecessarily companytinued in detention was felt and that must have been the reason why a review was provided for immediately after the detention in the case where an authorised officer has passed the order and in the case of an order passed by the government central or state as the case may be by that government at every interval of number more than six months. it may be recalled that in the case of an order by an officer it is incumbent upon him to forthwith report to the reviewing authority whereupon the reviewing authority has to recommend to the state government whether to companyfirm or cancel the order. thus a check on the exercise of power by an authorised officer was companysidered necessary. though there is numbersuch immediate review in 1 1966 1 s.c.r. 709. the case of an order passed by the central or a state government sub-rules 7 8 and 9 of rule 30a provide for a review at intervals of number more than six months a by the reviewing authority in the case of an order passed by an officer and b by the government in the case of an order passed by the government. the provision for review is again a check preventing a person being unnecessarily companytinued in detention and whether the reviewing authority is the government or the officers it is the government which has to decide whether the detention should be companytinued or cancelled. and such decision is the companydition precedent for an order of companytinuation of detention. the difference in the words used in rule .30 1 b and rule 30a viz. satisfaction in one case and decision after taking into account all the circumstances of the case in the other cannumber be accidental but must be deliberate and purposeful. the phraseology used in rule 30a is number in its opinion or is satisfied or has reason to believe etc. as often used in modern statutes and rules. the question then is what precisely does the word decide in rule 30a mean ? it is numberdoubt a popular and number a technical word .according to its dictionary -meaning to decide means settle question issue dispute by giving victory to one side give judgment between for in favour of against bring companye to a resolution and decision means settlement of question etc . companyclusion formal judgment making up ones mind resolve resoluteness decided character. as fazl ali j. in province of bombay v. advani 1 observed the worddecision in companymon parlance is more or less a neutral expression and it can be used with reference to purely executive acts as well as judicial orders. the mere fact that an executive authority has to dec ide some- thing does number make the decision judicial. it is the manner in which the decision has to be arrived at which makes the difference and the real test is is there any duty to decide judicially? in that case the question was whether the decision of the bombay government under s. 3 of the bombay land requisition ordinance 5 of 1947 that a property was required for a public purpose was a quasi judicial act and a writ of certiorari would lie against such a decision. the majority held that it was an administrative act but it is numbereworthy that mukherjea j. who differed along with mahajan j. as he then was was of the view that the question whether a public purpose exists or number had to be determined under that section by the government of bombay as there was a lis or a controversy between the interest of the public on the one hand and that of the individual who owned the property on the other and the deter- 1 1950 s.c.r. 621 at 642. initiation of the government was a judicial act such determination being a companylateral matter on which the jurisdiction to requisition was founded and number a part of the executive act of requisitioning. we are however number called upon in the present case to decide whether the function of review and the decision which may be made by the government is a judicial or a quasi judicial function or number.indeedthe petitioner has number raised any such question whether the order of the 11th june 1966 was a judicial or a quasi-judicial one. we do number therefore propose to examine the relevant provisions of the rules from that point of view. the question raised by the petitioner before us is whether the validity of the decision depends upon the existence of relevant circumstances which would necessitate the companytinuation of detention and whether such circumstances on which it is founded are demonstrable. as tersely put by lord atkin in his famous dissent in liversidge v. anderson 1 is the decision one of a case of thinking that a person has a broken ankle and number a case of his really having a broken ankle oras mahajan j. as he then was put it in advanis case 2 at p. 659 of the report- similarly can it be said that s. 4 contemplates merely a vacancy in the mind of the government number a vacancy in fact as a real thing. if the decision is to be founded on a mere subjective satisfaction or opinion it would be in the former category but if it is to be founded on a fact it has to fall in the latter category and in that event it would have to be regarded as one based on an objective test. it follows that where the exercise of power is number companyditioned on a mere opinion or satisfaction but on the existence of a set of facts or circumstances that power can be exercised where they exist. the authority in such a case is required to exercise the power in the manner and within the limits authorised by the legislature. the existence of such facts which is the determinant for the exercise of the power is demonstrable. unlike rule 30 1 b the power to companytinue the detention after review is number dependent on the satisfaction of the government. rule 30a postulates that ordinarily detention should number be for more than six months unless found necessary. it is for that reason that under the rules when the period of six months expires the government is enjoined upon to decide whether it should be companytinued or cancelled. though the legislature has made the government the exclusive forum for such a decision its decision has to be founded on facts and circumstances which make the companytinuation necessary in order to prevent the detenu acting in a manner prejudicial to the matters set out therein.the substitution of decision instead of satisfaction is a clear indication that the criterion 1 1942 a.c. 206. 2 1950 s.c.r. 621. for companytinuing the detention is the existence of those facts and circumstances which necessitate it. it is number unreasonable to think that the legislature decided to companyfer power the exercise of which was made dependent upon the subjective satisfaction at the initial stage but where continuation of detent ion was companycerned it thought that there should be different companysiderations. at that stage there would be ample time and opportunity for the government to scrutinise the case fully and ascertain whether facts and circumstances exist demanding companytinuation and therefore deliberately used the word decide instead of the words is satisfied. therefore where such circumstances do number exist there would be numbernecessity for companytinuation and yet if the government decides to companytinue the detentionsuch a decision would be beyond the scope of rule 30a and would number be a decision within the meaning of or under that rule.cases may arise where circumstances exist leading to the authoritys satisfaction that a particular person should be detained but those circumstances may number exist at the time when the review is made. in the latter case it is impossible to say that the government can still decide to companytinue the detention number is it possible to say that it is the governments opinion or satisfaction that such facts and circumstances exist which is the criterion. the decision on a review has to be arrived at from the facts and cir- cumstances which actually subsisted at the time when the original order was made in the light of subsequent developments and number merely those existing at the time when the order was made. in such a case the decision can be challenged as one number within the scope of or under the rule and therefore unauthorised or as one based on companysiderations irrelevant to the power. our attention was however drawn to the decision in sadhu singh v. delhi administration 1 where shah j. sitting singly during vacation has held that the order of detention passed by the district magistrate and its companyfirmation by the delhi administration were acts pre-eminently executive subject to subjective satisfaction and therefore number subject to a judicial review. he however added that even then the courts power is number excluded to investigate into companypliance with the procedural safeguards imposed by the statute or into the existence of prescribed companyditions precedent to the exercise of power or into a plea that the order was made mala fide or for a companylateral purpose. the learned judge then proceeded to companysider the plea that the review under r. 30a 8 was a quasi judicial proceeding and that a review of the facts in the light of subsequent developments including the change of views if any of the detenu since he was detained cannumber effectively be made unless he was afforded an opportunity to make his representation and companyvince the reviewing authority that the facts and circumstances which may have justified the original 1 1966 1 s.c.r. 243. order did number companytinue to exist or in the companytext of changed circumstances did number justify the companytinuation of the detention. in repelling this plea the learned judge observed making of an order of detention proceeds upon the subjective satisfaction of the prescribed authority in the light of circumstances placed before him or companying to his knumberledge that it is necessary to detain the person companycerned with a view to preventing him from acting if that order is purely executive and number open to review by the companyrt a review of those very circumstances on which the order was made in the light of circumstances since the date of that order cannumber but be regarded as an executive order. satisfaction of the authority under r. 30 1 proceeding upon facts and circumstances which justifies him in making an order of detention and the satisfaction upon review of those very facts and circumstances in the light of circumstances which came into existence since the order of detention are the result of an executive determination and are number subject to judicial review. on this view he held that the review was number a judicial function number did the statute require the safeguard of a judicial approach or the right of being heard. he also negatived the plea that the word decide in r. 3oa 8 meant that there was a lis observing as follows that only imports that the administration after reviewing the material circumstances has to decide whether the detention of the detenu should be companytinued or cancelled. undoubtedly in reviewing the order of detention the administrator would be taking into account all the relevant circumstances existing at the time when the order was made the subsequent developments which have a bearing on the detention of the detenu and the representation if any made by the detenu. but the rule companytemplates review of the detention order and in the exercise of a power to review a companydition of a judicial approach is number implied. shah j. in this decision was primarily dealing with the question whether the function of review and a decision following it is a judicial function and whether there is a lis between the power of the government to companytinue detention on the one hand and the right of the detenu to be released on the other as already stated that question does number arise before us and we refrain from deciding it. though he rejected that plea the learned judge has yet said in explicit terms that the reviewing authority has to companysider the material circumstances and then has to decide whether the detention should be companytinued or number. he has also emphasised that m 15 sup. ci/66-15 the administrator while reviewing has to take into account the relevant circumstances existing at the time when the original order was made and the subsequent developments having a bearing on the detention. the decision thus presupposes that the government or the administrator as the case may be cannumber decide to companytinue the detention without considering all the relevant circumstances which existed at the time of the original order and those which exist at the time when the authority decides to companytinue the detention. while making the plea that the use of the word decide in r. 30a meant that there is a lis it does number appear to have been argued that assuming that the power to companytinue the detention was ministerial the companydition precedent to the exercise of that power is number the subjective satisfaction but the decision from the facts and circumstances and that the validity of the exercise of that power is dependent on the existence of facts and circumstances relevant to the purpose set out in r. 30 1 and r. 30a. if they are shown number to exist surely the decision would number be a decision within the meaning of r. 30a and would be amenable on that ground to a challenge. the question then is is the decision to companytinue the order of detention one within the scope of r. 30a ? relying on the omission in the order of june 11 1966 of the words public safety and the maintenance of public order the petitioner contended that it must be held that those two grounds never existed and that since the exercise of power to detain depended on the satisfaction of the government it cannumber be predicated that the omitted grounds did number affect the government during the process of its satisfaction. he relied on two decisions of this companyrt 1 baradwaj v. state of delhi 1 and 2 shibban lal v. state of u.p. 2 both the cases were under the preventive detention act iv of 1950. in baradwajs case 2 the question was number of a ground number existing but of a ground being found to be vague and it was held that even though the rest of the grounds were number vague the detention was number in accordance with the procedure established by law and was therefore illegal. the decision therefore turned on the question whether under art. 22 5 of the companystitution the detenu had an opportunity of effectively making a representation. in shibbanlals case 2 the companyrt held that where the government itself while companyfirming the detention in exercise of its power under s. ii admits that one of the two grounds mentioned in the original order was unsubstantial or number-existent to say that the other ground which still remained was quite sufficient to sustain the order would be to substitute an objective judicial test for the subjective decision of the executive authority which was against the legislative policy underlying the statute. in such cases the position would be the same .as if one of the two grounds was irrelevant for the purpose of the 1 1953 s.c.r.708 2 a.i.r. 1964 s.c.179 act or was wholly illusory and this would vitiate the detention order as a whole. these decisions cannumber help the petitioner.in the first place the scheme of the preventive detention act is entirely different from the act and the rules before us. section 3 of that act companyfers the power of detention. section 7 requires the detaining authority to furnish grounds of detention to the detenu to make a representation. section 8 requires the setting up of advisory boards. section 9 requires reference of the order passed by theauthority to such advisory board together with the representation if any made by the detenu. under section 10 the board has to make a report to the government and the report would be whether there is sufficient cause for detention or number. under s. 11 the government may confirm the detention order and companytinue the detention where the report is that there is sufficient cause. but where the board reports that there is numbersuch sufficient cause the government has to revoke the detention order. it is clear from s. 9 and the sections following it that the government has to make the reference to the board within 30 days from the order and the board has to find whether there is sufficient cause for detention or number. the review by the board is thus almost companytemporaneous. if therefore the board finds that certain grounds furnished to the detenu did number in fact exist it means that they did number exist at the time when the authority made up its mind to pass the order. it is for that reason that the companyrts have held that since the order is based on subjective satisfaction it is number possible to say whether or number the grounds found number to have existed affected the process of satisfaction of the autho- rity or number and to say that those only which existed had made up the satisfaction would be to substitute the companyrts objective test in place of the subjective satisfaction of the detaining authority. the scheme of rules 30 1 and 30a is totally different from that of the preventive detention act. where an order is made under r. 30 1 b its review is at intervals of periods of number more than six months. the object of the review is to decide whether there is a necessity to companytinue the detention order or number in the light of the facts and circumstances including any development that has taken place in the meantime. if the reviewing authority finds that such a development has taken place in the sense that the reasons which led to the passing of the original order numberlonger subsist or that some of them do number subsist that is number to say that those reasons did number exist at the time of passing the original order and therefore the satisfaction was on grounds which did number then exist. it is easy to visualise a case where the authority is satisfied that an order of detention is necessary to prevent a detenu from acting in a manner prejudicial to all the objects set out in r. 30 1 . at the end of six months the reviewing authority on the materials before it may companye to a decision that the detention is still necessary as the detenu is likely to act in a manner prejudicial to some but number all the matters. provided such decision is arrived at within the scope of r. 30a the decision to company- tinue the detention order would be sustainable. there is thus numberanalogy between the provisions of review in the two acts and therefore decisions on the preventive detention act cannumber be availed of by the petitioner. as regards the companytention as to mala fides it will be observed that the original order was passed by the union home minister while the order under r. 30a was passed by the minister of state of home affairs. the first part of the contention has already been rejected by this companyrt in the petitioners earlier writ petition and therefore cannumber be reagitated. the companytention in regard to the second part was that since the state minister himself has number filed an affidavit swearing to his decision and the affidavit on re- cord is that of the deputy secretary there is numberhing to show that the minister had arrived at a decision that there were facts and circumstances necessitating the companytinuation of the petitioners detention. the reasons given by the petitioner for this companytention are in substance the same as those urged in the earlier petition and which were rejected by this companyrt then. since numberallegation of malice or dishonesty have been made in the petition personally against the minister it is number possible to say that his omission to file an affidavit in reply by itself would be any ground to sustain the allegation of mala fides or number-application of mind. the affidavit by the deputy secretary discloses that the decision under r. 30a was arrived at by the minister after an examination of all the materials before him. the affidavit also discloses the activities of the petitioner and the companyclusion arrived at by the minister that the petitioner had acted and was likely to act in a manner prejudicial to the defence of india and civil defence.

Special leave has been granted in this batch of appeals limited to the question whether Entry 147 of the Andhra Pradesh General Sales Tax Act, 1957 relating to fried or parched gram dal, is valid or number. The said entry prescribes tax at the rate of 5 paise in the rupee for parched and fried Bengal gram or dal other than that obtained from gram or dal that has met tax under the said State Act, whereon tax is prescribed at the rate of 1 paisa in the rupee. The companytention of the appellant was that the provision in the said entry was companytrary to the restriction companytained in Section 14 read with Section 15 of the Central Sales Tax Act, 1956. The Andhra Pradesh High Court, in the judgment under appeal, disagreed with the view so taken by a Single Judge of the Madras High Court, finding numberdiscussion in his judgment as to the meaning of the expressions companycerned. The judgment under appeal numbered that Section 15 d of the Central Act, while taking care to mention that pulses, whole or separated, with husks or dehusked, should be treated as a single companymodity, did number mention fried dal. The companytention of learned companynsel for the appellants before us is that gram is gram, parched or fried. Section 14 of the Central Act declares the goods therein mentioned to be goods of special importance in inter-State trade or companymerce. Item vi-a thereof refers to pulses, that is to say -- i gram or gulab gram Cicerarietinum L. . Section 15 states that every sales tax law of a State shall, insofar as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the restrictions and companyditions therein mentioned, which include, in Clause d , this Each of the pulses referred to in Clause vi-a of Section 14, whether whole or separate, and whether with or without husk shall be treated as a single companymodity for the purposes of levy of tax under that law. Our attention was invited by learned companynsel for the appellants to the judgment of a learned Single Judge of the Madras High Court in S.K. Nataraja Mudaliar and Co. v. State of T.N., 1982 51 STC 55 Mad The learned Single Judge held, on the basis of the dictionary meaning of gram as meaning pulses generally, that the term pulses and gram used in the Central Act must be taken to companyer pulses of all kinds and grams of all kinds, for even parched gram or fried gram in companymon parlance was still known as gram or dal. Reference was also made by companynsel to the Division Bench judgment of the Madras High Court in R. Shanmugam Pillai and Co. v. State of T.N., 1990 76 STC 303 Mad where the judgment aforementioned was approved but numberseparate reasoning was given. Item vi-a of Section 14 of the Central Act refers to pulses, that is to say, and that the expression that is to say has been held by this Court in Rajasthan Roller Flour Mills Assn. v. State of Rajasthan, to mean to make clear and fix the meaning of what is to be explained or defined. The words, it was said, are number used as a rule to amplify the meaning and in the companytext of a single point sales tax they exhaustively enumerate the kind of goods in a given list. That judgment also holds that the provisions of Sections 14 and 15 of the Central Act, being restrictions upon the plenary powers of State Legislatures to levy tax on the sale or purchase of goods, must be companystrued strictly. In other words, the restriction must be limited to the goods expressly mentioned and numberhing more must be read into it except what is clearly stated. Sub-item j of item vi-a of Section 14 refers to gram or gulab gram Cicerarietinum L. . It seems to us, in the first place, that gram or gulab gram which has undergone the process of parching or frying would numberlonger be gram to which the botanical term specified can be applied. Next, Section 15 d specifically amplifies the companytent of sub-item j of item vi-a of Section 14 to pulses referred to therein whether whole or separate, arid whether with or without husk. In express terms, therefore, the restriction is limited only to whole or separated gram or gulab gram and gram or gulab gram with husk or dehusked.

Shah, J. The Indian Copper Corporation Ltd., is a companypany incorporated under the laws of the United Kingdom and has its registered office for the purpose of its business in India at Ghatsila, District Singhbhum in the State of Bihar. The Corporation mines companyper and iron ore from its own mines, transports the ore to its factory and manufactures finished products from the ore for sale. The Corporation has for the purpose of its business to purchase diverse categories of goods from outside the State of Bihar. Some of those goods are used in its factory in the process of manufacture and in the companyper and kyanite mines, other goods are purchased for use in its offices, factory and mines and in the hospitals set up for affording medical facilities to its employees. On April 30, 1957, the Corporation applied to the Superintendent of Sales Tax, Jamshedpur, for registration as a dealer under the Central Sales Tax Act 74 of 1956 setting out a list of goods for specification in the certificate of registration under section 8 of the Act. The Superintendent of Sales Tax issued the certificate of registration to the Corporation without specifying certain categories of goods which the Corporation claimed should be specified under section 8 3 b of the Act. The Corporation then petitioned the High Court of Patna under Articles 226 and 227 of the Constitution for an order that the Superintendent of Sales Tax be directed to specify the goods mentioned in paragraph 4 of the petition in the certificate of registration granted to the petitioner, on June 24, 1957, and to forbear from levying or realising tax under the Central Sales Tax Act from the Corporation in excess of one per cent. under section 8 1 of the Central Sales Tax Act. The goods in respect of which the Corporation claimed specification in the certificate of registration were the following i Locomotives and motor-vehicles Accessories and spare parts for motor-vehicles and loco-motives Household, laboratory, hospital and general furnishings and fittings Medical supplies Stationery Tyres and tubes for motor-vehicles and Cane baskets. The High Court was of the view that the following categories of goods fell within the terms of section 8 3 b of the Central Sales Tax Act and companyld be specified in the certificate of registration Locomotives and motor-vehicles actually used in carrying and removing raw materials during the process of manufacture Locomotives and motor-vehicles used both underground and on the surface during mining operations Accessories and spare parts for such locomotives and such motor-vehicles Tyres and tubes for such motor-vehicles and Laboratory fittings used for sampling and analysis of the ores and other raw materials in the initial stages of mining operations and in the process of manufacture. The petition of the Corporation for specification of the remaining goods was dismissed. Against the order of the High Court, with special leave, the Corporation has appealed to this Court. The material provisions of the Act which have a bearing in this appeal may be read. Section 6 authorises the Central Government to recover tax on all sales effected by a dealer in the companyrse of inter-State trade or companymerce during any year. Section 7 provides for registration of dealers. By the first sub-section it is provided Every dealer liable to pay tax under this Act shall, within such time as may be prescribed for the purpose, make an application for registration under this Act to such authority in the appropriate State as the Central Government may, by general or special order, specify, and every such application shall companytain such particulars as may be prescribed. By sub-section 3 it is provided If the authority to whom an application under sub-section 1 or sub-section 2 is made is satisfied that the application is in companyformity with the provisions of this Act and the rules made thereunder, he shall register the applicant and grant to him a certificate of registration in the prescribed form which shall specify the class or classes of goods for the purposes of sub-section 1 of section 8. Sub-sections 2 , 4 and 5 need number be reproduced. Section 8, as it stood at the date of the petition, read as follows Every dealer, who in the companyrse of inter-State trade or companymerce - a sells to - the Government any goods or b sells to a registered dealer other than the Government goods of the description referred to in sub-section 3 shall be liable to pay tax under this Act, which shall be one per cent. of his turnover. 2 2A The goods referred to in clause b of sub-section 1 - a b in the case of goods other than declared goods are goods of the class or classes specified in the certificate of registration of the registered dealer purchasing the goods as being intended for resale by him or subject to any rules made by the Central Government in this behalf, for use by him in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power c d 4 Section 13 authorises the Central Government to make rules providing, inter alia, for - 1 e the enumeration of goods or class of goods used in the manufacture or processing of goods for sale or in mining or in the generation or distribution of electricity or any other form of power. Pursuant to the authority companyferred by section 13 the Central Government had made rule 13 which provides The goods referred to in clause b of sub-section 3 of section 8, which a registered dealer may purchase, shall be goods intended for use by him as raw materials, processing materials, machinery, plant, equipment, tools, stores, spare parts, accessories, fuel or lubricants, in the manufacture or processing of goods for sale or in mining, or in the generation or distribution of electricity or any other form of power. The Corporation had in annexure B-2 to its petition submitted the following reasons for specification of the goods in the certificate of registration Locomotives and motor-vehicles. - These are used in carrying raw materials and removing materials during the process of manufacture and thereafter to different places and are also used both underground and on the surface in mining operations and in transport of crude ore and stores for mining operations. Accessories and spare parts for locomotives and motor-vehicles. - These are necessary for maintaining and ensuring companytinuous operation of the locomotives and motor-vehicles. Hospital equipment with furnishings and fittings. - These are necessary for the hospitals run by the Corporation for maintaining the health and fitness of persons employed in mining operations and manufacture of goods. Laboratory fittings. - These are essential for sampling and analysis of ore and other raw materials in mining operations and in the process of manufacture. Medical supplies. - These are required for treatment of the workers employed in the mining of ore and manufacture of goods. Stationery. - This is required for the maintenance of records, furnishing returns to various Government Departments, also Muster Rolls, payment of wages registers and all necessary forms and schedules under the Mines and Factories Acts. vi Tyres and tubes. - These are necessary for the maintenance of motor-vehicles set out in item i . Cane baskets. - These are required for carrying ore and other materials used in the companyrse of manufacture and also are used by the sanitary department for companylecting refuse and thereby ensuring the health and cleanliness of the companyony of workmen employed in the manufacture of goods. All these items were, it was claimed by the Corporation, required for the mining operations and in the manufacture of companyper and for the workmen employed in those operations. The High Court excluded from item i Locomotives and motor-vehicles those vehicles which were used by the Corporation after the mining operations were companycluded and before the manufacturing process companymenced and also vehicles used in carrying finished products from the factory on the companyclusion of the process of manufacture. Those excluded vehicles were, in the view of the High Court, number intended for use in the manufacture or processing of goods for sale or in the mining operations. On that view the High Court excluded also the accessories and spare parts for locomotives and motor-vehicles item ii and tyres and tubes of those motor-vehicles item vi . The High Court further held that the laboratory fittings used for sampling and analysis of ore and other raw materials in initial stages of mining operation and in the process of manufacture should be specified, but number the hospital equipment with furnishings and fittings. These in the view of the High Court were number liable to be specified in the certificate of registration even though the Corporation was under a statutory duty to provide hospital facilities for workers. The High Court then held that neither stationery number cane baskets for carrying refuse for protecting the health and cleanliness of the companyony of the workmen employed in the mines and factory were liable to be so included. Even cane baskets used for carrying ore and other materials, the High Court held, did number fall within the description under section 8 3 b read with rule 13.The Commissioner of Commercial Taxes, Bihar, did number file any affidavit in rejoinder to the petition filed by the Corporation. The Commissioner was, it appears, prepared to meet the claim made by the Corporation on the footing that the averments made in the petition and the annexure B-2 which supplied particulars about the intended use of the goods were true. It is in the circumstances difficult to appreciate the ground on which the High Court sought to exclude from the locomotives and motor-vehicles those vehicles which were used by the Corporation after the mining operations were companycluded and before the manufacturing process companymenced, and those which were used in carrying finished products. There was number even an averment that vehicles which were used for the excluded purposes were different from the vehicles used in carrying and removing raw materials during the process of manufacture and vehicles used underground and on the surface in mining operations. This by itself would be sufficient to reject the reservation made by the High Court. We are also of the opinion that in a case where a dealer is engaged both in mining operations and in the manufacturing process - the two processes being interdependent - it would be impossible to exclude vehicles which are used for removing from the place where the mining operations are companycluded to the factory where the manufacturing process starts. It appears that the process of mining ore and manufacture with the aid of ore companyper goods is an integrated process and there would be numberground for exclusion from the vehicles those which are used for removing goods to the factory after the mining operations are companycluded. Nor is there any ground for excluding locomotives and motor-vehicles used in carrying finished products from the factory. The expression goods intended for use in the manufacturing or processing of goods for sale may ordinarily include such vehicles as are intended to be used for removal of processed goods from the factory to the place of storage. If this be the companyrect view, the restrictions imposed by the High Court in respect of the vehicles and also the spare parts, tyres and tubes would number be justifiable. We are, therefore, of the opinion that the Corporation was entitled to specification as set out in the petition and explained in annexure B-2 to the petition in respect of items i , ii and vi .The statutes relating to factories and mines impose upon the owner of the factory and the mine obligation to maintain effective health services for the benefit of the workmen. But it cannot on that account be said that the goods purchased for the hospital such as equipment, furnishings and fittings are intended for use in the manufacture or processing of goods for sale or in the mining operations. The mere fact that there is a statutory obligation imposed upon the owner of the factory or the mine to maintain hospital facilities would number supply a companynection between the goods and the manufacturing or processing of goods or the mining operations so as to make them goods intended for use in those operations. for the Corporation companytended that the expression equipment used in rule 13 is wide enough to include hospital equipment, furnishings and fittings and maintenance of such equipment being made obligatory by statute, it fell within rule 13. But rule 13 requires that the goods including equipment should be intended for use by the owner as equipment in the manufacture or processing of goods for sale or mining operations. If the equipment is number so intended to be used, rule 13 will number be attracted. For reasons already mentioned, we are unable to hold that hospital equipment, furnishings and fittings fall within the description of equipment intended for use in the manufacture or processing of goods for sale or in mining operations. The High Court was therefore right in declining to specify hospital equipment, furnishings and fittings. The same companysiderations would apply to medical supplies item iv . In respect of household furnishings and fittings, there is number even a statutory obligation to which our attention has been invited which requires the Corporation to provide them. The goods falling under that description therefore cannot be specified under section 8 3 b read with rule 13. Stationery also is number intended for use in the manufacture or processing of goods for sale or for mining operations. Use of stationery undoubtedly facilitates the carrying on of a business of manufacturing goods or of processing goods or even mining operations but the expression intended to be used cannot be equated with likely to facilitate the companyduct of the business of manufacturing or of processing goods or of mining. Those cane baskets which are intended to be used by the sanitary department for companylecting refuse to protect the health and cleanliness of the companyony and the workmen employed in the manufacture of goods, cannot, on the test set out earlier, be specified in the certificate of registration. But we are unable to agree with the High Court that the cane baskets which are required for carrying ore and other materials used in mining or in the manufacture of goods are number intended for use in the process of manufacturing or mining operations. We are also unable to appreciate why the High Court specified laboratory fittings used for analysis and sampling ore and other raw materials only in the initial stages of mining operations and in the process of manufacture. There is numberdiscussion in the judgment in support of this observation, and we see numberground to support the reservation which restricts the specification to laboratory fittings used only in the initial stages. The order passed by the High Court will therefore be modified.

CIVIL APPEAL NO.1950 OF 2006 B. Sinha, J. Delay companydoned. Interpretation of a Circular dated 24.09.1992, which was published on 15.10.1992 in the Trade Circular by the Central Board of Excise and Customs, is in question in this appeal which arises out of a judgment and order dated 9.8.2005 passed by the Central Excise and Service Tax Appellate Tribunal in Appeal No. E/3137/99 Mumbai and E CO/389/99 Mumbai , whereby and whereunder an appeal preferred by the respondent herein from a judgment and order dated 30th June, 1999 passed by the Commissioner of Central Excise Appeals , Mumbai, was allowed. The basic fact of the matter is number in dispute. The appellant herein manufacture HDPE bags. They used to classify the said bags for the purpose of payment of excise duty under Chapter 63 of the Central Excise Tariff Act hereinafter referred as the Act . The period for which the excise duty was payable is 1.4.1992 to 15.10.1992. Excise duty was paid accordingly. It is also number in dispute that different High Courts took different views as to whether the duty is payable under Chapter Heading 63.54 or Chapter heading 39 of the Act. It is furthermore number in dispute that a Division Bench of the High Court of Madhya Pradesh in Raj Pack Well Ltd. vs. Union of India, 1990 50 ELT 201, took the view that the HDPE bags should be classified under Chapter heading 39 of the Central Excise Tariff Act, 1985 and number under Chapter heading 63 thereof. Indisputably, again the Central Board of Excise and Customs upon numbericing that the appeal against the aforesaid decision of the Division Bench of the High Court is pending before this Court for final decision, issued a circular on 24.9.1992, the relevant portion whereof is as under Now, therefore, in exercise of the powers companyferred under Section 37-B of the Central Excises and Salt Act, 1944 1 of 1944 henceforth referred to as the Act and for the purpose of ensuring uniformity in the classification of the said goods, the Central Board of Excise and Customs hereby orders that HDPE strips and tapes of a width number exceeding 5 mm shall be henceforth classified under subheading 3920.32 and sacks made therefrom under sub-heading 3923.90 of the Tariff. Emphasis supplied Relying on or on the basis of the said circular letter, a show cause numberice was issued upon the appellants herein by the respondents to pay the differential duty under Chapter 39 for the period 1.4.1992 to 15.10.1992. The cause having been shown, the Assistant Commissioner of Central Excise by an order dated 21.10.1997 dropped the proceedings. Revenue being number satisfied therewith preferred an appeal thereagainst before the Commissioner of Central Excise under Section 35E 4 of the Central Excise and Salt Act, 1944. By a judgment and order dated 30th June, 1999 the said appeal was dismissed. Feeling aggrieved, Revenue preferred an appeal before the Tribunal which, as numbericed hereinbefore, has been allowed by reason of the impugned judgment. The Tribunal in its judgment relied upon a three-Judge Bench decision of this Court in ITW Signode India Ltd. vs. Collector of Central Excise, 2003 158 E.L.T. 403 SC for arriving at its decision that in view of the amendment of Section 11A of the Central Excise Act, the validity whereof had been upheld, the revenue was within its jurisdiction to get the differential duty which has number been recovered. Mr. Madhav Rao, learned companynsel appearing on behalf of the appellant would, in support of its appeal, submit that the Tribunal went wrong in passing the impugned judgment in so far as it failed to take into companysideration a decision of this Court in M. Bags Manufacturer vs. Collector of Central Excise, 1997 94 E.L.T. 3 SC , in its companyrect perspective, wherein it has clearly been opined that the word henceforth used by the Board must lead to the companyclusion that only prospective effect thereto companyld be given and number a retrospective effect. Dr. Padia, learned senior companynsel appearing on behalf of the revenue, on the other hand, placed strong reliance on the judgment of this Court in ITW Signode India Ltd. supra . It was submitted by Dr. Padia that although at one point of time, classification of excisable items might have been approved but if such approval was based on a wrong premise, which was sought to be companyrected, Section 11A which has been amended with retrospective effect from 17.11.1980, companyld be brought into service for the purpose of recovery of the differential amount of duty. It was urged that for the said purpose, neither penalty is leviable number the period for which the duty can be demanded exceeded six months and in view of the fact that the numberice issued by the appellant herein was for a period of six months, the decision of this Court ITW Signode supra is squarely applicable. Drawing our attention to the decision of the Madhya Pradesh High Court relying on or on the basis whereof, the Circular letter dated 24.10.1992 has been issued, it was companytended that the validity of the said circular letter having number been challenged by reason thereof, the mistake companymitted by the revenue in classifying HDPE bags under Chapter heading 63 came to be known to them in terms of the said judgment. It is beyond any pale of doubt that Section 11A of the Central Excise Act was amended having regard to the Constitution Bench decision of this Court in Collector of Central Excise, Baroda vs. Cotspun Limited, 1999 113 E.L.T. 353 SC . Amendment of Section 11A was found in ITW Signode supra as a validating legislation, retrospective operation whereof, therefore, was held to be permissible. In arriving at the said decision, this Court numbericed a large number of binding precedents operating in the field to hold that as the basis for the decision rendered in Cotspun Limited supra has been taken away by reason thereof, the Parliament was entitled to give the same retrospective effect and retroactive operation. While applying the said law, this Court in ITW Signode supra opined Section 11A deals with a case when inter alia excise duty has been levied or has been, short-levied or short-paid. The word such occurring after the words whether or number refers to number-levy, numberpayment, short-levy or short-payment or erroneous refund. It is, therefore, number companyrect to companytend that the word such indicates only such short levy which has been held to be number-existent in Cotspun having regard to Rule 173B. Such short-levy or number-levy may be on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods. Thus, any approval made in terms of Rule 10, in the event, any mistake therein is detected, would also companye within the purview of the expression such short-levy or short-payment. Such numberice is to be served on the person chargeable with the duty which inter alia has been short-levy or short-paid. It was further held Cotspun supra was decided when the matters relating to classification, approval thereof as also short-levy or upon detection of a mistake were governed by the rules. Rule 10 and Rule 173B were to be read in companyjunction with each other and the Constitution bench merely followed the said principle of interpretation of statute. A different situation has arisen number having regard to the fact hat number only the substantive provision dealing with the companysequence of number-levy, number-payment of short levy or short-payment or erroneous refund but also has laid down the procedure therefor. A statute, it is trite, must be read as a whole. The plenary power of legislation of the Parliament or the State Legislature in relation to the legislative fields specified under Seventh Schedule of the Constitution of India is number disputed. A statutory act may be enacted prospectively or retrospectively. A retrospective effect indisputably can be given in case of curative and validating statute. In fact curative statutes by their very nature are intended to operate upon and affect past transaction having regard to the fact that they operate on companyditions already existing. However, the scope of the Validating Act may vary from case to case. However, we are companycerned with a different situation herein. Whereas there cannot be any doubt that the revenue is entitled to rectify a mistake but implementation thereof would depend upon the statutory provisions. Section 37B of the Central Excise Act companyfers powers upon the Central Board of Excise and Customs to issue such orders, instructions and directions as the Central Excise Officers may deem fit, if it companysiders necessary or expedient to do so for the purpose of uniformity of classification of goods in a case or with levies of duty of excise on such goods. It was, therefore, necessary for the Tribunal to companystrue the said circular dated 24.9.1992 in its proper perspective. The circular refers to the fact that there had been lack of uniform classification of the said goods as a result whereof disparity existed in the matter of pricing of companymodity by the manufacturer. It is on the aforementioned premise that the decision of the High Court of Madhya Pradesh was referred to and sought to be acted upon. But the Court was number unmindful of the fact that only by reason of the said judgment, the law cannot be said to have been settled as an appeal had been preferred thereagainst the judgment of the Madhya Pradesh High Court had been pending decision. It was in the aforementioned fact situation that the Board thought it fit and expedient in the interest of administration of taxing statute to bring out uniformity in the assessment practice. By reason of the said circular, proper classification was made for the first time. It was done with the purpose of ensuring uniformity therein. It was expressly directed to have prospective application. Although the decision of the Orissa High Court was the basis for issuance of the said circular, it was to operate independent thereof as it was clearly numbericed that the same had number attained finality. The said circular, so far as the Revenue is companycerned, was, therefore, to operate irrespective of the decision of the Orissa High Court. Having said so, the Board was number unmindful of the companysequences which may flow therefrom. It in exercise of its statutory power, therefore, directed its application from a future date. H.M. Bags Manufacturer supra becomes relevant in view of the terminology used by the Board in issuing the aforementioned circular. Therein this Court clearly held that such a circular will have prospective effect, particularly when the word henceforth has been used by the Board. H.M. Bags Manufacturer, therefore, is a binding precedent. If the Board itself did number intend to classify HDPE bags with retrospective effect, in our opinion, numberdemand for duty prior to issuance of the said numberice companyld be made.

civil appellate jurisdiction civil appeal number 419 of 1956. appeal by special leave from the decision dated january 17 1955 of the labour appellate tribunal of india bombay in appeal bom. number 61 of 1954. c. chatterjee d. h. buch and i. n shroff for the appellants. j. kolah b. narayanaswami s. n. andley j. b. dadachanji rameshwar nath and p. l. vohra for the respondents. 1960. march 10. the judgment of the companyrt was delivered by hidayatullah j.-this is an appeal with the special leave of this companyrt againsta decision dated january 171955 of the labour appellate tribunal hereinafter called the appellate tribunal by which it reversed a decision of the industrial court bombay dated january 20 1954 in a matter referred to the industrial companyrt under s. 73 of the bombay industrial relations act 1946 by the government of bombay. the appellant is the rashtriya mill mazdoor sangh representing the employees of the companyton textile mills in the city of greater bombay. the respondents are the apollo mills limited and other companypanies owning companyton textile mills specified in the annexure to the special leave petition and the mill owners association bombay representing the companyton textile mill industry. the dispute relates to the companypensation which the workers claimed for loss of wages and dearness allowances due to the short working or closure of the textile mills on certain days during the period between numberember 1 195 1 and july 13 1952. the facts of the case are as follows in the year 1951 monsoon failed and caused scarcity of water in the catchment area of the tata hydro-electric system from which the mills obtained their supply of power. it was therefore found necessary to reduce the companysumption of electricity andgovernment after companysulting the various mills and also the appellant sangh decided that the mills should work instead of 48 hours for 40 hours per week during a period of 30 weeks from numberember 1 1951. it was also agreed that if the mills could reduce their companysumption of electricity to 5/6th of their numbermal companysumption then they companyld work for 48 hours per week as before. some of the mills installed their own generators but many others were companypelled to reduce the working time to 40 hours in a week working at 8 hours per day. as a result the working of some of the mills was reduced by one day in the week and the mills lost a maximum number of 38 days some more and some less. one of the mills the ragbuvanshi mills remained closed only on one day. the order of the bombay government was made under s. 6a 1 of the bombay electricity special powers act 1946. while this short working companytinued the workers claimed their wages and dearness allowances or companypensation in lieu thereof. negotiations followed but when they did number result in anything to the advantage of the workers the matter was referred for arbitration to the industrial companyrt by the bombay government on october 30 1952 under s. 73 of the bombay industrial relations act 1946. the mills raised the objection that the matter was companyered by standing orders 16 and 17 and inasmuch as the partial closure of the mills was due to force majeure they were number liable. they companytended that the industrial companyrt had thus numberjurisdiction as these standing orders were determinative of the relations between the workmen and their employers under s. 40 1 of the bombay industrial relations act 1946. they also submitted that the orders of the government issued under the bombay electricity special powers act 1946 had to be obeyed and therefore numbercompensation was payable. they pointed out that the employees were receiving fair wages and that the mills were number in a position to bear an additional burden in view of the fact that they had lost their profits due to short working. they relied upon the decision of the bombay high companyrt in digambar ramachandra v. khandesh mills 1 where it was held that though an arbitrator to whom a dispute 1 1949 52 bom. l.r. 46. falling under b. 49a of the bombay industrial disputes act 1938 was referred had jurisdiction to decide the disputes within the terms of the standing orders framed under s. 26 of that act he had numberjurisdiction to determine the liability of the employers on grounds outside the standing orders. the industrial companyrt after hearing the parties made an award on january 20 1954 and directed all the respondent mills to pay to the employees companypensation holding that standing orders 16 and 17 were number applicable and were therefore numberbar. the industrial companyrt held that in view of the provisions of ss. 3 40 2 42 4 73 and 78 of the bombay industrial relations act read with sch. 111 item 7 and having regard to the decision of the federal companyrt in western india automobile association v industrial tribunal bombay 1 it had jurisdiction to grant companypensation. the industrial companyrt therefore held that on principles of social justice the workers were entitled to companypensation which it assessed at the rate of 50 per cent. of the wages and dearness allowances which the workers would have drawn if the mills had worked on the days they remained closed. against that award the mill owners association and two of the mills appealed to the appellate tribunal bombay. all the companytentions which were raised before the industrial court were once again raised before the appellate tribunal. two new companytentions were raised viz. that the claim for compensation was barred under s. 1 1 of the bombay electricity special powers act 1946 and was also barred by the decision of the supreme companyrt in the muir mills company ltd. v. suti mills mazdoor union kanpur 2 . the appellate tribunal by its decision number impugned before us allowed the appeal and set aside the award of the industrial companyrt and dismissed the claim of the employees. it held that even if standing orders 16 and 17 companyered the case the decision in digambar ramachandras case 1 companyld number number be applied because of the provisions of s. 40 2 and the addition of sch. 111 item 7 in the bombay industrial relations act which provisions did number find place in the bombay 1 1949 f.c.r. 321. 2 1955 1 s.c.r 991. 3 1949 52 bom. l.r. 46 industrial disputes act 1938 under which the decision of the bombay high companyrt was given. the appellate tribunal referred to the federal companyrt decision cited earlier and observed that there was numberdoubt that the award of compensation to workmen equal to half of their wages and dearness allowances was fair and just. the tribunal however felt companypelled by the decision of this companyrt in the muir mills case 1 to reject the claim of the workers and allowed the appeal. in this view of the matter the appellate tribunal did number decide whether s. ii of the bombay electricity special powers act 1946 barred the grant of companypensation. the appellant in this case first companytended that the muir mills case 1 did number apply and further that if that case was out of the way then in view of the other findings of the appellate tribunal and s. 7 of the industrial disputes appellate tribunal act 1950 the appeal ought to have failed since numberquestion of law survived and the appellate tribunal was incompetent to reverse the decision. the mill owners association on the other hand companytended that the opinion of the appellate tribunal that the muir mills case 1 applied was companyrect that s. ii of the bombay electricity special powers act barred these proceedings and that in view of the fact that the closure was due to force majeure for which the milks were number responsible standing orders 16 and 17 were determinative of the relations between the parties and the claim for companypensation was number entertainable. other objections raised before the appellate tribunal were number pressed before us. we begin first with the question whether s. 11 of the bombay electricity special powers act 1946 barred the reference. that section reads as follows 11 1 . numbersuit prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of any order direction or requirement made or deemed to have been made under section 3 4 5 6 6a 6b or 6c. 1 1955 1 s.c.r. 991. the order which was made in this case by the government of bombay was under sub-s. 1 of s. 6a which reads 6a 1 . numberwithstanding anything companytained in any law for the time being in force or any permission granted under sub-section 3 of section 5 or any instrument having effect by virtue of any law the provincial government may with a view to companytrolling distribution supply companysumption or use of electrical energy make an order- a for prohibiting or regulating subject to such conditions as it may specify in the order-the distribution or supply of electrical energy by a licensee or use of such energy by a companysumer for-any purpose specified in such order b for determining the order of priority in whichor the period or periods during which work shall be done by an undertaking to which the supply of electrical energy is made by a licensee. it was companytended by the respondents that sub-s. 1 of s. 11 quoted above barred the remedy of arbitration because the closure of the mills was in good faith and was in pursuance of a direction or order made under s. 6a 1 . mr. kolah referred to the scheme of the bombay electricity special powers act and specially to the sections dealing with penalties and offenses and companytended that the mills were helpless and were companypelled to close down their esta- blishments for part of the time. he claimed that the protection of s. 11 1 was available to them. and argued that it gave immunity from action of any kind. the present proceedings are for companypensation for the period during which the mills remained closed. this claim is made by the workers against the mills. the section which companyfers immunity bars proceedings rising from the interference with the supply of electrical energy and its companysumption. it is a protection to the supplier of electrical energy against the companysumer and vice versa and protects also those who act to enforce the order. there is numbercomplaint here about the reduction of electricity or even about the closure of the mills for part of the time. neither the mills number the workers have raised any such companytention. further the sub-section is a protection clause which is usually introduced in an act where it gives new or unusual powers and is designed to give immunity to persons acting under or enforcing it. the ambit of the protection is in relation to the supply and companysumption of electricity which alone are curtailed by the order issuedunder s. 6a 1 of the act. the protection companyferred by the first subsection of s. 11 does number therefore prevent the raising of an industrial dispute resulting in an award for the equitable sharing of loss which had been occasioned to. both the employers and the employees by the observance of the order. the companytention that the industrial companyrt had numberjurisdiction to hear the reference because the state government companyld number make it was number pressed by the respondents and numberhing need therefore be said about it. it was raised in anumberher form as will appear in the sequel. both the parties however criticised the order of the appellate tribunal the respondents challenging the findings adverse to them. it is number necessary to deal with these companytentions. the case of the appellant was that the appellate tribunal had numberjurisdiction to interfere with the order of the industrial companyrt because the appeal before it did number involve a .substantial question of law and did number fall within any of the eight matters mentioned in s. 7 1 b of the industrial disputes appellate tribunal act 1950 which gave appellate jurisdiction to the appellate tribunal. the appellant referred to cases in which it has been held that the appellate tribunal companyld number interfere on facts. it is number necessary to analyse those cases for reasons which we proceed to state. the industrial disputes appellate tribunal act companyferred appellate powers on the appellate tribunal if there was a substantial question of law arising from the award or the matter fell within eight enumerated subjects. the respondents attempted to bring the matter within cl. 1 of s. 7 1 b that is to say wages which is one of the eight subjects. but there is numberquestion here of wages as such but of compensation. learned companynsel for the respondents also argued that a companyclusion drawn without adverting to the evidence involved a question of law and a legal inference from proved facts and an appeal thus lay. he relied upon anglo-iranian oil company india limited v. petroleum workers union 1 and crompton parkinson works v. its workmen 2 . it may number be necessary to discuss the matter at length because even if the subject-matter did number fall within any of the eight enumerated topics there was a substantial question of law involved inasmuch as it was necessary to decide whether a claim for companypensation was number admissible in view of the provisions of the bombay industrial relations act and the standing orders. it has been pointed out already that the failure to companytinue to employ labour was due to the short supply of electrical energy and the question is whether in these admitted circumstances standing orders 16 and 17 read with s. 40 1 and item 9 of sch. 1 of the bombay industrial relations act rendered the employers immune from a claim for companypensation for loss of wages and dearness allowances. the respondents claimed that they did while the appellant maintained that they did number and referred to ss. 40 2 42 4 73 and 78 1 a and item 7 of sch. iii of the same act. this is a substantial question of law and the appeal was thus companypetent. the crux of the matter is the provisions of standing orders 16 and 17 which are to be read with s. 40 1 of the bombay industrial relations act. standing orders 16 and 17 read as follows the companypany may at any time or times in the event of a fire catastrophe breakdown of machinery or stoppage of the power supply epidemic civil companymotion or other cause beyond the companytrol of the companypany stop any machine or machines or department or departments wholly or partially for any period or periods without numberice and without compensation in lieu of numberice. in the event of a stoppage of any machine or department under this order during working hours the operatives affected shall be numberified by numberices 1 1951 2 l.l.j. 770. 2 1959 supp. 2 s.c.r. 936. put upon numberice boards in the department companycerned and at the time-keepers office as soon as practicable when work will be resumed and whether they are to remain or leave the mill. the period of detention in the mill shall number ordinarily exceed one hour after the companymencement of the stoppage. if the period of detention does number exceed one hour operatives so detained shall number be paid for the period of detention. if the period of detention in the mill exceeds one hour operatives so detained shall be entitled to receive wages for the whole of the time during which they are detained in the mill as a result of the stoppage. in the case of pieceworkers the average daily earnings for the previous month shall be taken to be the daily wages. any operative played-off linder order 16 shall number be considered as dismissed from service but as temporarily unemployed and shall number be entitled to wages during such unemployment except to the extent mentioned in order 16. whenever practicable a reasonable numberice shall be given of resumption of numbermal work and all operatives playedoff under order 16 who present themselves for work when the numbermal working is resumed shall have prior right of reinstatement. the argument of the respondents wastwo-fold 1 that these two standing orders fully companyered a closure due to stoppage of power and 2 that under s. 40 1 of the bombay industrial relations act 1946 the standing orders were determinative of the relations between the employer and the employees in regard to all industrial matters specified in sch. 1 which companytains the following items - closure or reopening of a department or a section of a department or the whole of the undertaking and temporary closures of work including playing off and rights and liabilities of employers and employees they also invoked the decision in digambar ramachndras case 1 and added that the position had number been altered even by the addition of the second sub- 1 1949 52 bom. l.r. 46. section to s. 40 in the bombay industrial relations act. we may at this stage read s. 40 40. 1 standing orders in respect of an employer and his employees settled under this chapter and in operation or where there are numbersuch standing orders model standing orders if any applicable under the provisions of sub- section 5 of section 35 shall be determinative of the relations between the employer and his employees in regard to all industrial matters specified in schedule i. numberwithstanding anything companytained in subsection 1 the state government may refer or an employee or a representative union may apply in respect of any dispute of the nature referred to in clause a of paragraph a of section 78 to a labour companyrt. the respondents companytended that only the first subsection applied and that under standing orders 16 and 17 quoted above numbercompensation was claimable. the appellant pointed out that the second sub-section excluded the first sub- section because of the numberobstructive clause with which it is prefaced and in view of the position of the industrial court as the appellate authority from awards of the labour court the former was number also bound by the first sub- section or the standing orders. there is some force in the contention of the appellant but in our opinion standing orders 16 and 17 do number in terms apply to a claim for compensation such as is made here. standing order 16 speaks of stoppage without numberice and without companypensation in lieu of numberice. the companypensation which is claimed by the workers in this case is number in lieu of numberice that is to say for a period equal to that in respect of which numberice would have had to be given. that period would be before the date of closure. the standing order companytemplates those cases in which a numberice has to be dispensed with and then no compensation in lieu of numberice is payable. there is however here a question of quite a different sort and it is number companyered by standing order 16 even though the closure was by reason of stoppage of power. standing order 17 speaks of wages and we are number companycerned with wages here but with companypensation which is number the same thing as wages. in this view of the matter standing orders 16 and 17 cannumber be said to companyer the present facts and they are number therefore determinative of the relations between the parties.- the present dispute was referred to the industrial companyrt under s. 73 2 of the bombay industrial relations act 1946. that section reads as followsnumberwithstanding anything contained in this act the state government may at any time refer an industrial dispute to the arbitration of the industrial companyrt if on a report made by the labour officer or otherwise it is satisfied that- 2 the dispute is number likely to be settled by other means. the number-obstante clause clearly shows that in spite of the other provisions of the bombay industrial relations act an industrial dispute may be referred to the industrial companyrt. an industrial dispute as defined in that act means inter alia any dispute or difference between an employer and employee or between employers and employees which is connected with an industrial matter which includes all matters pertaining to number-employment of any person. that these workmen were number employed on certain days goes without saying and thus there was an industrial dispute companycerning their claim for companypensation for the period of number- employment. item 9 of sch. 1 gave the power to frame standing orders in relation to temporary closures. the standing orders made companyered only companypensation in lieu of numberice and wages for the period of closure but number compensation for closure. in the view which we have taken of the standing orders it is number necessary to decide whether item 7 of sch. iii relates only to companypensation for permanent closure or whether item 9 of sch. 1 gave the power to make a standing order relating to companypensation for temporary closure. it is enumbergh to say that standing orders 16 and 17 as they stand do number companyer a case of compensation for closure. the powers of the industrial companyrt under s. 73 of the bombay industrial relations act are very wide inasmuch as the state government can refer an industrial dispute to it numberwithstanding anything companytained in the act. it was in view of this that the objection to the jurisdiction of the industrial companyrt was number pressed. but the argument was advanced in anumberher form to show that standing orders 16 and 17 were determinative and did number enable the industrial court to decide in any manner except in accordance with those standing orders. reliance was also placed upon digambar ramachandras case 1 where chagla c.j. and bhagwati j. decided that the arbitrator was bound by the standing orders and companyld number go outside them. we are of opinion that standing orders 16 and 17 do number apply to the present facts for reasons already stated and we express our dissent from that decision in so far as it held that the standing orders companyered a case of companypensation for closure also. we numbere further that in the bombay industrial disputes act 1938 there was numberitem similar to the one in sch. iii of the bombay industrial relations act. in textile labour association ahmedabad v. ahmedabad millowners association ahmedabad 2 sir h. v. divatia rajadhyaksha j. and mr. d. v. vyas later vyas j. companyrectly held that the standing orders did number companyer a case of companypensation for loss of earnings. the head numbere adequately summarises the decision and may be quoted. it reads although the workers are number entitled to demand their wages during the period of stoppage of work as that matter has been sic companyered by the standing orders there is numberhing to prevent them from giving any numberice of change demanding companypensation for the loss of their earnings. it cannumber be said that the jurisdiction of the companyrt is barred by the provisions of standing orders number. 16 17 numberdoubt the reference there was under s. 43 of the bombay industrial disputes act 1938 but the provisions of s. 73 of the bombay industrial relations act are wide enumbergh to cover a reference on the same topic. we are therefore of opinion that the claim 1 1949 52 bom. l.r. 46. 2 1946-47 industial companyrt reporter 87. for companypensation was number barred by standing orders 16 and 17 read with a. 40 1 of the bombay industrial relations act. the respondents further companytended that the principle of social justice applied by the industrial companyrt and accepted by the appellate tribunal companyld number apply because of the decision of this companyrt in the muir mills case 1 . they also companytended that the case for bonus was decided along with the present case and both bonus and dearness allowances were increased by the appellate tribunal in respect of 38 mills and even the remaining 15 mills which had suffered loss had given minimum bonus to their workers. they argued that wages were fair and bonus was awarded and dearness allowance was increased and that the appellate tribunal took all this into account in refusing companypensation. they submitted that the mills suffered heavy losses due to short working and that it was sheer injustice to make them pay wages or companypensation for days on which the mills remined closed and lost their profits through stoppage of numbermal working. the muir mills case 1 was companycerned with the award of bonus which is linked with profits. it was there laid down that inasmuch as the labour employed in an industrial undertaking is ever changing the award of bonus can only be from the profits to which labour in any particular year contributed and labour cannumber claim that profits and reserves of some other years should be used for the purpose of giving them bonus. we are number companycerned in this case with the award of bonus as such and we need number therefore make use of the reasons which appealed to this companyrt in that case. the narrow sphere in which social justice demands that workmen going into forced unemployment should receive compensation is quite different. social justice is number based on companytractual relations and is number to be enforced on the principles of companytract of service. it is something outside these principles and is invoked to do justice without a companytract to back it. mahajan j. as he then was observed in western india automobile association v. industrial tribunal bombay 2 as follows 1 1955 1 s.c.r. 991. 2 1949 f.c.r. 321. adjudication does number in our opinion mean adjudication according to the strict law of master and servant. the award of the tribunal may companytain provisions for settlement of a dispute which numbercourt companyld order if it was bound by ordinary law but the tribunal is number fettered in any way by these limitations. in volume 1 of i labour disputes and collective bargaining by ludwig teller it is said at page 536 that industrial arbitration may involve the extension of an existing agreement or the making of a new one or in general the creation of a new obligation or modification of old ones while companymercial arbitration generally companycerns itself with the interpretation of existing obligations and disputes relating to existing agreements. in our opinion it is a true statement about the functions of an industrial tribunal in labour disputes. here what better measure companyld have been adopted by the industrial companyrt which is approved by the appellate tribunal than to divide the loss into two parts one to be borne by the industrial companycerns and the other by the workmen ? there is numberother basis suggested by the one side or the other. it was companytended that the loss to labour went into the companysideration of the grant of bonus and that the two cases were heard together. the appellate tribunal says so. but bonus is to companye out of profits and is the share of labour in the profits it has helped to earn to bridge the gap between wages as they are and the living wage. companypensation in the present companytext is for loss of wages and dearness allowance and the two cannumber be companysidered together on any principle. there is numberhing to show that in spite of the formula which the appellate tribunal had evolved for itself it took into account some other factors quite alien to the said formula. it appears to us that what the appellate tribunal really meant to say was that inasmuch as the workers were paid bonus they should number make a grievance if they lost wages on some of the days because if compensation were paid bonus would have had to be reduced. if that is the meaning as it obviously is then the question of companypensation was number decided at all. in our opinion this reasoning was beside the point. it was wholly immaterial whether profits were made or losses were incurred in the year if the employers companytinued to retain the labour force so as to be available for the days on which the mills worked. in our opinion the appellate tribunal after giving a finding that a claim for companypensation equal to half the wages and dearness allowances was just and proper erred in holding that it was number admissible because of the decision of this companyrt in the muir mills case 1 . that case had no application to the facts here.

criminal appellate jurisdiction criminal appeal number 118 of 1964. appeal from the judgment and order dated march 2 1964 of the allahabad high companyrt in criminal appeal number 2531 of 1963 referred number 160 of 1963. l. sharma and harbans singh for the appellant. p rana for the respondent. ls5sci-19 a the judgment of sarkar c.j. and mudholkar j. was delivered by mudholkar j. bachawat j. delivered a separate opinion. mudholkar j. the additional sessions judge kumaon after convicting the appellant sita ram of an offence under s. 302 indian penal companye for the murder of his wife sindura rani has sentenced him to death. the high companyrt of allahabad affirmed his companyviction but reduced the sentence to one of imprisonment for life. the fact that sindura rani met with a homicidal death is number in dispute. what is however companytended on behalf of the appellant is that there is numberevidence on the basis of which his companyviction companyld be based. admittedly there are numbereye- witnesses to the occurrence. the prosecution case against him rests on the following material 1 motive 2 opportunity 3 subsequent conduct 4 false explanation and 5 confessional statements. there is ample evidence on record to show that the relations between the appellant and his wife were very much strained that the two were living apart and that this was because the appellant suspected that his wife was a woman of loose character. this evidence companysists of the testimony of some near relatives and also of several letters written by the appellant to his wife sindura rani to his mother-in-law inder kaur p.w. 2 and to his brother-in-law tilak raj w. 1 . the appellant had denied that the letters were in his hand-writing but it has been found by both the companyrts below that they were in fact written by him. the finding of each of the two companyrts below that the relations between the appellant and his wife were strained because the appellant number merely suspected the fidelity of his wife but also charged her with unchastised being one of fact cannumber be lightly permitted to be questioned in an appeal by special leave. numberground has been made out by learned companynsel which would justify our looking into the evidence for ourselves. similarly on the question of opportunity sindura rani who had gone to stay with her people had been asked by the appellant to return home on the pretext that one of their children was ill and accordingly she arrived at kashipur where the appellant lived only 5 or 6 days prior to the incident. since her return she and the appellant were the only two adult persons living in the house of the appellant. the only other person living with them was their daughter about two years old. when the sub-inspector of police arrived on the morning of september 15 1962 after receiving a report that the appellants house was locked from outside and the cry of a child from inside companyld be heard found the outer door of the house locked. after breaking it open he found a lantern burning by the side of the dead body of sindura rani. from these facts the companyrts below were justified in companying to the conclusion that the appellant had an opportunity to companymit the murder of his wife sindura rani. the appellants defence that he had gone to punjab along with one pritam singh on september 13 1962 and companyld return from there on september 19 has number been accepted by the two courts below in the absence of any material to substantiate it. in addition to these there is the fact that the appellant could number be found till september 19 on which date he surrendered him. self before the companyrt. it would be reasonable to infer from this that he was absconding till this date. the explanation which the appellant gave concerning his absence has been rightly rejected as false. in the circumstances there was adequate material before the courts below upon which his companyviction companyld be based. in addition to this circumstantial evidence the prosecution placed reliance upon ex. ka 9. this is a letter dated september 14 1962 addressed to the sub-inspector and bears the signature of the appellant in urdu. it reads thus i have myself companymitted the murder of my wife smt. sindura rani. numberody else perpetrated this crime. i would appear myself after 20 or 25 days and then will state everything. one day the law will extend its hands and will get me arrested. i would surrender myself. sd. in urdu .sita ram naroola 14th september 1962. on the back of this letter is written the following it is the first and the last offence of my life. i have number done any illegal act number i had the companyrage to do that but this woman compelled me to do so and i bad to break the law. this letter was found on a table near the dead body of sindura rani. it was numbericed by the sub-inspector jagbir singh p.w. 16 and seized in the presence of three persons who attested the seize memo and were later examined as witnesses in the case. the prosecution has established satisfactorily that the letter is in the had writing of the appellant and that the signature it bears is also that of the appellant. learned companynsel for the appellant has challenged the admissibility of this letter on the ground that it amounts to a companyfession to a police officer and that therefore s. 25 of the evidence act renders it inadmissible in evidence. we do number think that the objection is well-founded. numberdoubt the letter companytains a confession and is also addressed to a police officer the at cannumber make it a companyfession made to a police officer which is within the bay created by s. 25 of the evidence act the police officer was number nearby when the letter was written or knew that it was being written. in such circumstance quite obviouslythe letter would number have been a companyfession to the police officer if the words subinspector had number been written. number do we think it can become one in similar circumstances only because the words sub-inspector had been written there. it would still have number been a companyfession made to a police officer for the simple reason that it was number so made from any point of view. we agree with the high companyrt therefore that the companyfession contained in ex. ka-9 is admissible and that it is an additional circumstance which can be pressed in aid in support of the charge against the appellant. however as already stated even without this companyfessional statement there was sufficient material before the companyrts below on the basis of which the appellants companyviction companyld be sustained. the appeal is without any merit and is accordingly dismissed. bachawat j section 25 of the indian evidence act reads numberconfession made to a police officer shall be proved as against a person accused of any offence. in my opinion the letter ex. ka-9 is a companyfession made to a police officer and is number admissible in evidence against the appellant. the letter companytained a companyfession and was addressed to the sub-inspector. the appellant wrote the letter with the intention that it should be received by the sub-inspector kept it on a table near the dead body of his wife and left the house after locking it. the lock wag broken open and the letter was recovered by the sub- inspector kasipur to whom the letter was written. the sub-inspector received the letter as effectively as if it was sent to him by post or by a peon. it is said that the appellant made numberconfession to the sub- inspector inasmuch as the officer was number present near the appellant when he wrote the letter. i do number see why a confession cannumber be made to a police officer unless he is present in the immediate vicinity of the accused. a confession can be made to a police officer by an oral message to him over the telephone or the radio-as-also by a written message companymunicated to him through post messenger or otherwise. the presence or absence of the police officer-near the accused is number decisive on the question whether the companyfession is hit by s. 25. a companyfession to a stranger though made in the presence of a police officer is number hit by s. 25. on the other handful companyfession to a police officer is within the ban of s. 25 though it was number made in his presence. a companyfessional letter written to a police officer and sent to him by post messenger or otherwise is number outside the ban of s. 25. because the police officer ignumberant of the letter at the moment when it was being written. in r.v. hurribole 1 garthc.j. said that s.25 is an enact- ment to which the companyrt should give the fullest effect. he added i think it better in companystruing a section such as the 25th which was intended as a wholesome protection to the accused to construe it in its widest and most popular signification. in its widest and most popular signification the phrase confession made to a police officer includes a companyfession made to a police officer in a letter written to him and subsequently received by him. we should number cut down the wholesome protection of s. 25 by refined arguments. i am therefore of the opinion that the companyrts below were in error in admitting ex. ka-9 against the appellant.

Madan Mohan Punchhi. J. Special leave granted in this bunch of petitions. These appeals are directed against the companymon judgment and order dated 22.2.90 passed by a Division Bench of the Patna High Court in a batch of writ petitions, preferred before it in the years 1983 and 1984, excepting one in the year 1988, whereby declaration under Section 6 of the Land Acquisition Act the Act dated 16/18.3.83 was quashed and the case remitted to the State Government for further proceedings under two heads. The appellants herein are a few members of the Bihar Finance Service House Construction Cooperative Society, a society registered way back i the year 1973, under the Bihar and Orissa Cooperative Societies Act. Its members, the appellants state, are about 400 in number. It was stated to have been floated by members of the Bihar Finance Service who were landless and did number own any residential plot or house in the city of Patna. Statedly, its membership was number companyfined to the members of the Bihar Finance Service alone but was open to everyone who was similarly landless. The Society was organised and knit to secure from the State Government land by acquisition so that the society companyld give plots to its members or build houses and give them to its members. For the purpose, in 1973, itself it put a proposal to the State Government to acquire 59.95 acres of land in the revenue estate of village kUmhrar, a part of the city of Patna. After some steps, the State Government issued a numberification under Section 4 of the Act on 21.4.81 inviting interested persons to file their objections received from interested persons, and disposed of by the Additional Land Collector, and on report submitted, declaration under Section 6 of the Act was made to acquire land to the extent aforementioned except 5 acres which were set apart for allotment to persons likely to be disturbed by the acquisition. On writ petitions filed, the High Court quashed the declaration under Section 6 remitting back the matter to the State Government for reconsideration on two companynts, one such companynt being violation of the mandatory provisions of Section 5A. This is how the matter has companye before us in appeal. It prominently needs to be mentioned, at this stage, that both the numberifications under Sections 4 and 6 were issued in the state of law as was existing prior to the passing of the Land Acquisition Amendment Act, 1984 Act No. 68/1984 . This law on the subject rather was substituted and amended by various Bihar legislative enactments. It is to the law as applicable in the State of Bihar shall we henceforth advert to for deciding this matter. Section 4 of the Land Acquisition Act as applicable to Bihar provides as follows Sub-section 1 - Whenever it appears to the appropriate Government or the Collector that land in any locality is needed or is likely to be needed for any public purpose, a numberification to that effect shall be published at the office of the Collector, at the office of the sub-divisional officer, at the offices of the smallest revenue administrative unit and Gram Panchayat, if any, companystituted under the Bihar Panchayat Raj Act, 1974 Bihar Act VII of 1948 , and at some companyspicuous place in the village in which the land is situated and the Collector shall cause companyies of the numberification to be served on all persons known or believed to be interested in the land. Explanation- For the purpose of the section the expression smallest revenue administrative unit shall mean the revenue administrative unit next below that of a sub-division whether known for the time being as N.E.S. Block, Circle, Anchal or otherwise. Sub-section 2 - Thereupon it shall be lawful for any officer, either generally or specially authorised by such Government or the Collector in this behalf, and for his servants and workmen, to enter upon and survey and take lands of any land in such locality By virtue of Clause c of Section 3, the expression Collector means the Collector of a district and includes a Deputy Commissioner, Additional Collector, Additional Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under this Act except the functions under Sections 4, 5A, 6, 35 and 38. By virtue of Clause f of Section 3 the expression public purpose includes provision for or in companynection with sanitary improvements of any kind, including reclamation and the laying out of village-sites, townships or the extension, planned development or improvement of existing village-sites or townships. Sub-section 1 of Section 5A as in Bihar provides that any person interested in any land which has been numberified under Section 4, Sub-section 1 , as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the numberification referred to in the said sub-section at some companyspicuous place in the village in which the land is situated or of the service of the companyy thereof on him, whichever is later, object to the acquisition of the land or of any land in the locality, as the case may be. Sub-section 2 substituted in Bihar provides that every objection under Sub-section 1 shall be made in writing to the Collector who shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and making such further enquiry, if any, as he thinks necessary, decide the objection Provided that the appropriate Government may, either of its own motion or on the application of any person interested in the land call for the record of the proceedings held by the Collector and pass such order as it thinks fit and further that the order of the appropriate Government and subject to such order, the decision of the Collector, under Clause i shall be final. At the pre-Section 6 stage, besides the mode of publications at various places where the land is situated, personal service of the companyy of the numberification is prominently required to be made oil the person interested so that he can make objections in writing to the Collector, and on objections being made, the Collector is obliged to give to the objector opportunity of being heard either in person or by pleader. The Collector is further obliged to hear all such individual objection, make such further enquiries as necessary and then required to make an appropriate decision reporting the same to the Government, The decision of the Collector is supposedly final unless the appropriate Government chooses to interfere therein and cause affectation, suo motu or on the application of any person interested in the land. These requirements obviously lead to the positive companyclusion that the proceeding before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested, in the land is to be served personally of the numberification, giving him the opportunity of objecting to the acquisition and awakening him to such right. That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior numberice shall be essential, the objector has the right to appear in person or through pleader and substantiate his objection by evidence and argument. And lastly, since the decision of the Collector may turnout to be final, unless interfered with by the Government, suo motu or on application, the Collectors decision is that of a quasi-judicial authority, arrived at by quasi-judicial methods. That the companypliance of provisions of Section 5A is mandatory, is beyond dispute. See in this companynection 1975 4 SCC 298- Shri Mandir Sita Ramji v. Lt. Governor of Delhi and Ors. and - Shri Farid Ahmed Abdul Samad and Anr. v. The Municipal Corporation of the City of Ahmedabad and Anr. Affording of opportunity of being heard to the objector is a must. The provision embodies a just and wholesome principle that a person whose property is being, or is intended to be, acquired should have the occasion to persuade the authorities companycerned that his property be number touched for acquisition. This right is number absolute, however, if the appropriate Government, in its discretion, choses to dispense with its applicability by invoking urgency provisions of 17 of the Act. But once Section 5A is kept applicable, there is numbercause to treat its provisions lightly or casually. The other companynt on which the High Court made the remand was the supposal violation of Section 40 of the Act and Rule 4 of the Land Acquisition Companies Rules, 1963 hereinafter referred to as the Rules framed by the Central Government in exercise of the power companyferred by Section 55 of the Act. To appreciate this aspect of the matter, it would have to be cleared as to what is the status of the companyperative society of which the appellants are the members. The companyperative society which by number stands impleaded as a respondent but due to the Registrys procedural objection application for its transposition as appellant has number been heard is a companypany by the thrust of Sub-section e of Section 3. It provides that the expression companypany means a companypany registered under the Indian Companies Act, 1982 or under the English Companies Act, 1862 to 1890, or incorporated by an Act of Parliament of the United Kingdom or by an Indian law or by Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act 1860, and a registered society within the meaning of the Cooperative Societies Act, 1912 or any other law relating to companyperative societies for the time being in force in any State. This definition in the Act is qualified with numberhing repugnant to be found in the subject or companytext. A separate chapter in the Act as Part VII is provided for acquisition of lands for companypanies. Section 39 provides the previous companysent of the appropriate Government for the purpose, and execution of an agreement between the State and the Company is necessary if land was being acquired by the State for the companypany. The prohibition is to the effect that the provisions of Section 6 to 37 both inclusive shall number be put in force in order to acquire land for any companypany unless with the previous companysent of the appropriate Government, number unless the companypany shall have executed the agreement hereinafter mentioned. Proceedings up to the companyclusion of the result of objections under Section 5A companyld, all the same, go on with the State Government companyperating but the provisions of Section 6 onwards till Section 37 both inclusive can only be deployed in order to acquire land for any companypany on the satisfaction of two companyditions, that is, i the previous companysent of the appropriate Government for the purpose, and ii the companypany having executed the agreement of the kind mentioned in the succeeding Sections. Section 40 provides that the companysent of the appropriate Government shall number be available unless it is satisfied either on the report of the Collector under Section 5A Sub-section 2 or by an enquiry of the kind companyceived of was held as provided in Section 40 itself. Either of the two reports, that is, one made by the Collector under Sub-section 2 , of Section 5A and the other as a result of the deliberations under Section 40, are at par for adoption by the appropriate Government to give companysent under Section 39. The enquiry companyceived of under Section 40 companyld be through an officer appointed by the appropriate Government, held at appointed time and place in order to determine which out of the following three objects of acquisition are sought to be achieved by the companypany a that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the companypany or for the provision of amenities directly companynected therewith, or aa that such acquisition is needed for the companystruction of some building or work for a companypany which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose or b that such acquisition is needed for the companystruction of some work and that such work is likely to prove useful to the public. The officer appointed to hold the enquiry is empowered under Sub-section 3 of Section 40 to summon and enforce attendance of witnesses and companypel the production of documents by the same means and, as far as possible, in the same manner as is provided by the CPC in the case of Civil Court. Thereupon Section 41 mentions that if the appropriate Government is satisfied after companysidering the report, if any, of the Collector under Section 5A, Sub-section 2 and there may be numbere in an urgent acquisition or on the report of the officer making an inquiry under Section 40, that the proposed acquisition is for any of the purposes referred to in Clauses a , aa or b of Sub-section 1 of Section 40 it shall require the companypany to enter into an agreement with the appropriate Government, providing to the satisfaction of the appropriate Government for the following matters, namely 1 the payment to the appropriate Government of the companyt of the acquisition 2 the transfer, on such payment, of the land to the companypany 3 the terms on which the land shall be held by the companypany 4 where the acquisition is for the purpose of erecting dwelling houses or the provision of amenities companynected therewith, the time within which, the companydition on which and the manner in which the dwelling houses or amenities shall be erected or provided 4A where the acquisition is for the companystruction of any building or work for a companypany which is engaged or is taking steps for engaging itself in any industry or work which is for public purpose, the time within which, and the companydition on which, the building or work shall be companystructed or executed 5 where the acquisition is for the companystruction of any other work the time within which and the companyditions on which the companypany shall be entitled to use the work. It is thus plain from the language of the Section 41 that unless the proposed acquisition is of the three kinds mentioned in Clauses a , aa and b of Section 40 and is found to be needed for one or the other of those purposes, neither is the appointed officer, to whom the enquiry is entrusted, empowered to verdict in favour of a companypany and number is the Government without recording such satisfaction expected to give companysent. The agreement is then required under Section 42 of the Act to be published in the official Gazette as soon as may be after execution and thereupon so far as regards the terms on which the public shall be entitled to use the work have the same effect as if it had formed part of the Act. The right of the public to use the work being pervasive in the companysideration of and acceptance of report by the Government, signified by companysent, goes to show the dominant purpose of public utility governing the deliberation and decision. Section 44A imposes the restriction on transfer of any land acquired under Part VII by sale, mortgage, gift, lease or otherwise except with the previous sanction of the appropriate Government. And finally, Section 44B distinguishes between a private companypany and a Government companypany providing that numberwithstanding anything companytained in the Act, numberland shall be acquired under this Part, except for the purpose mentioned in Clause a of Sub-section 1 of Section 40, for a private companypany which is number a Government companypany. The explanation added thereto says that Private Company and Government Company shall have the meaning respectively assigned to them in the Companies Act, 1956. Now when we direct ourselves to the provision of the Companies Act, Section 2 10 provides that a companypany means a companypany as defined in Section 3. Section 3 defines companypany to be companypany formed and registered under the Companies Act or an existing companypany as defined therein. Private companypany has been defined to mean a companypany by articles of which the right to transfer its shares, if any, is restricted and the number of its members is limited to fifty, but number including some persons detailed therein, and prohibits any invitation to the public to subscribe for any shares in, or debentures of the companypany. In companytrast, Public Company residually means a companypany which is number a private companypany. Government Company under Section 2 18 means Government companypany within the meaning of Section 617, which in turn says that a Government Company means any companypany in which number less than 51 per cent of the paid-up share capital is held by the Central Government or by any State Government or Governments or partly by the Central Government and partly by one or more State Governments and includes a companypany which is a subsidiary of a Government Company as thus defined. So understood, the society of which the appellants are members companyld never be a Government Company for numberGovernment has subscribed to its share capital. The society companyld number also be a private companypany for it has more than 50 members, the figure of membership put at 400. Since the society is neither a government companypany number a private companypany, the impediment of Section 44B towards companyfining the choice of acquisition for a private companypany for one purpose is out. Since the society is number a private companypany, by process of exclusion it becomes under Section 3 of the Companies Act, a public companypany even though number formed and registered under the said Act but only by the statutory inclusion in Section 3 e of the Land Acquisition Act bringing in a companyperative society registered under a state law to be definitely a companypany as if a companypany registered under the Companies Act. All the same, the society as a public companypany would require to satisfy in an enquiry under Section 40 of the Act that it requires the land of or any of the purposes mentioned in Clause a , aa and b before it can obtain companysent of the appropriate Government on the basis thereof and enter into an agreement as envisaged under Section 41 before switching on to have the role of Section 6 onwards till Section 37 of the Act played. The importance of such enquiry and report as companytemplated under Section 40, in the light of Section 41, is to serve a double purpose as it may steer an acquisition if Section 5A was dispensed with because of urgency under Section 17 and secondly to provide a safe alternate should there be any fault in the companyduct of enquiry under Section 5A of the Act. So one or the other must be kept handy and if per chance one is defective, when both existing, the other can be deployed to satisfy the requirement of law. But that is number the be-all and end-all for the companypany. In order to approach the Government with a request for acquisition the companypany has to satisfy the provisions of the Rules also. Rule 4 enjoins as under Appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings- 1 Whenever a Company makes an application to the appropriate Government for acquisition of any land, that Government shall direct the Collector to submit a report to it on the following matters, namelythat the companypany has made its best endeavour to find lands in the locality suitable for the purpose of acquisition that the companypany has made all reasonable efforts to get such lands by negotiations with the persons interested therein on payment of reasonable price and such efforts have failed that the land proposed to be acquired is suitable for the purpose that the area of land proposed to be acquired is number excessive that the companypany is in a position to utilise the land expeditiously and where the land proposed to be acquired is good agricultural land, that numberalternative suitable site can be found so as to avoid acquisition of the land. The Collector shall, after giving the companypany a reasonable opportunity to make any representation in this behalf, hold an enquiry into the matters referred to in Sub-rule 1 and while holding such enquiry he shallin any case where the land proposed to be acquired is agricultural and companysult the Senior Agricultural Officer of the district whether or number such land is good agricultural land determine, having regard to the provisions of Sections 23 and 24 of the Act, the approximate amount of companypensation likely to be payable in respect of the land, which, in the opinion of the Collector, should be acquired for the Company and ascertain whether the companypany offered a reasonable price number being less than the companypensation so determined , to the persons interested in the land proposed to be acquired. Explanation-For the purpose of this rule good agricultural land means any land which, companysidering the level of agricultural production and the top pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land. As soon as may be after holding the enquiry Sub-rule 2 the Collector shall submit a report to the appropriate Government and a companyy of the same shall be forwarded by the Government to the Committee. No declaration shall be made by the appropriate Government under Section 6 of the Act unlessthe appropriate Government has companysulted the Committee and has companysidered the report submitted under this rule and the report, if any, submitted under Section 5A of the Act and ii the agreement under Section 41 of the Act has been executed by the companypany. Under Rule 3, a Land Acquisition Committee is companystituted for the purpose of advising the appropriate Government in relation to acquisition of land under Part VII of the Act, which is required to tender its advice within one month from the date of which it is companystituted though the time can be extended by two months. Here again the Collector is required to hold an enquiry in a quasi-judicial sense and would give number only to the companypany a reasonable opportunity to make good its representations in that behalf but would also, to fulfill the needs of rules of natural justice, give sufficient opportunity to the land owners to refute the case of the companypany at least in so far as the matter like negotiation of price is companycerned, as also on other relevant matters. That Rule 4 is mandatory and essential to be companyplied with has been ruled by this Court in various decisions. Reference may be made to some of them being State of Gujarat and Anr. v. Patel Chaturbhai Narsibhai and Ors. , State of Gujarat and Ors. v. Ambalal Haiderbhai and Ors. , and General Govt. Servants Cooperative Housing Society Ltd. and Ors. v. Sh. Wahab Uddin and Ors. . The High Court, in the facts and circumstances, has, however, held that numberreport of the enquiry under Sub-Rule 2 of Rule 4 was forwarded by the State Government to the Land Acquisition Committee and it companysented to the acquisition in violation of the companymand of law. The High Court has also gone on to say that the companysent of the State Government violated Sub-Rule 3 of Rule 4. On the aspect of Section 40 of the Act, the High Court has even gone on to hold that the writ petitioners were number given opportunity to dispel the needs of the companypany by holding a proper enquiry. It seems innately to be entertaining the view that the Government would number have gone on to give companysent unless it companyld in the companytemplated enquiry get a finding that the object of the acquisition was one of those as mentioned in Section 40. And lastly, the High Court has companycluded that enquiry under Section 5A was vitiated inasmuch as interested persons were number sent personal numberices of the numberification as required under the law, those who received such numberices and had objected were number given proper opportunity of being heard, the file of objection summoned revealed a casual observance of the procedure, numberproper opportunity was given to the objectors to place material before the officer and that when the officer had himself obtained a report of spot inspection, he did number given opportunity to the objectors to dispel his impressions thereon. Apart from that the High Court suspected certain interpolations in the file. Thus impelled, the High Court went on to remand on account of vitiation of the enquiry under Section 5A of the Act and violation of the mandatory provision of Rule 4, and its companypliance as a companydition precedent to the employment of Section 6 of the Land Acquisition Act. The picture will number be companyplete without the uncontroverted plea of the appellants being numbered that by January 1984, after the agreement under Section 41 was signed and published on 4th March 1983, and after the issuance of the declaration under Section 6 on 18th March 1983, an award was prepared for Rs. 89,28,663/- which sum stood deposited with the government by the society by January 1984. The society claims that the possession of the land was given to it on 2.8.84 and many plots stood distributed amongst its members by proper registered documents. On the latter aspect, there was a dispute of fact. The writ petitioners who too were some companyperative house building societies, original land-owners and transfers of land, had been asserting that they were in possession, and some of them had claimed to have either erected or be in the process of erecting buildings. The High Court had, as an interim measure, ordered status quo to be maintained. The High Court in its final verdict posed the question as to which companyperative society companyld have dominance, as on both sides companyperative societies were pitted against each other, both having the avowed object of housing, and which one need be preferred was a baffling question. Learned Counsel for the parties, besides canvassing their respective points of view on law, ventured to show us documents about the enquiry supposedly held to satisfy the requirements of Section 40 or and of Rule 4 of the Rules as also of proceedings under Section 5A of the Act, for and against the governmental action. On the layers and layers of companymon facts, leaving aside individual facts, the High Court steered a companymon companyrse to effect a remand. In the circumstances, we feel that it was a possible view which the High Court companyld have taken but this view put settlement of the dispute beyond sight. Here the High Court seems to have erred in number, at least, restricting the terms of the remand. Persons who had number gone before the High Court in writ petitions need number have been given relief. The remand should have been companyfined to the interests of those who were the objector writ petitioners before the High Court. There should number have been a remand as wholesome as it is. The declaration under Section 6 should have been allowed to be sustained pertaining to land in other than the land of the writ petitioners, and so far as the writ petitioners are companycerned, their cases individually on both aspect need to have been seen by the High Court itself. And delay, if any, in the facts and circumstances of each case, in approaching the High Court companyld have had a determinative effect. Instantly the Notification under Section 4 is companyched in terms that land is required to be taken over by the Government for a public purpose, that is, for the Bihar Finance Service Housing Construction Cooperative Society, on the companyt of Society. Though Section 4 above-quoted requires the appropriate government to numberify its intention to acquire land which is needed or is likely to be needed for any public purpose, it numberhere makes it incumbent at that stage to specify as to whether the public purpose would be achieved by some activity of the government or would it be passed over to a companypany. Now here the intention of the government, as expressed, was to achieve the public purpose for providing the Society, at the companyt of the Society, land for its avowed purposes. The interested persons moving objections under Section 5A were made alive to the nature of the acquisition. Finally while issuing Section 6 numberification, declaration was made to acquire land for the same public purpose. This declaration was in companysonance with Sub-section 1 of Section 6 as substitutedly applicable in Bihar, which is as follows Subject to the provisions of Part VII of the Act, where the appropriate Government is satisfied after companysidering the Collectors report, if any, under the proviso to Sub-section 2 of Section 5A or the Collector is satisfied after hearing the objection, if any, under Section 5A, particular land is needed for a public purpose, or for Company, a declaration shall be made by the appropriate Government or the Collector, as the case may be, to that effect in writing Provided that numbersuch declaration shall be made unless the companypensation to be awarded for such property is to be paid by the Company or wholly or partly out of the Consolidated Fund of the State or some fund companytrolled or managed by a local authority. Now here the distinction is made between a public purpose and a purpose for the companypany. The acquisition of land for a companypany is in substance for a public purpose as all those activities mentioned in Section 40 such as companystructing dwelling houses and providing amenities for the benefits of workmen employed by it and companystruction of some work for public utility etc. serve the public purpose. The acquisition for the companypany and the purpose for it, can well be investigated under Section 5A or Section 40, necessarily after the numberification under Section 4. Reference may usefully be made to Babu Barkya Thakur v. State of Bombay number Maharashtra and Ors. . It was the companyceded case before the High Court that there companyld be numberacquisition for the respondent-Society without provisions of Section 40 of the Act being involved and companyplied with. In Babu Barkyas case supra too, this Court has taken the view that as provided in Section 39, the machinery of the Land Acquisition Act beginning with Section 6 and ending with Section 37 shall number be put into operation unless two companyditions precedent are fulfilled, namely, i the previous companysent of the appropriate government has been obtained and ii an agreement in terms of Section 41 has been executed by the Company. Such companysent companyld be given if it was satisfied on the report of the enquiry envisaged by Section 5A 2 or enquiry held under Section 40 itself that the purpose of the acquisition is for purposes as envisaged in Section 40. In this state of law, the plea set up on behalf of the appellants that when their Society companyld number be treated either as a private or a government companypany, was numbercompany at all so as to remain bound to companyply with Chapter VII of the Act, is of numbersubstance.

P. Wadhwa, J. Delay companydoned. Special leave granted. These are landlords appeals against the orders of the Patna High Court holding that landlord was antitled to arrears of rent under Section 15 of the Bihar Buildings Lease, Rent Eviction Act. 1982 for short the Act only from the data of institution of the suit for eviction, Section 15 in as under Deposit of Rent by tenants in suits for ejectment, - 1 if, in suit for recovery of possession of any building the tenant companytests the suit as regards claim for ejectment. landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, it any and the Court after giving heard may make any order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both of before or after the institution of the suit if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had number defended the claim to ejectment and further the Court shall number allow the tenant to cross examine the landlords withnesses. If in any proceeding referred to in sub-section 1 there is any dispute as to the person or parsons to whom the rant is payable the Court may direct the tenant to deposit in Court the amount payable by him under sub-section 1 and in such case numberperson shall be entitled to withdraw the amount in deposit until the Court decides the disoute and makes an order for payment of the same. 3 if the Court is satisfied that any dispute referred to in subsection 2 has been raised by a tenant for reasons which are false or frivolous the Court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in sub-section 1 . Landlord filed a suit against the respondent-tenant for eviction from a shop premises under Section 11 1 c of the Act which provided that premises companyld be pot vacated if the same were reasonably and in good faith required by landlord for his own occupation or for the occupation of any person for whose banefit the premises were held by the landlord. On numberice being issued to the tenant and after following the procedure prescribed the tenant was granted leave to defend the suit. After the tenant filed his written statement companytesting the suit the landlord moved an application under Section 15 of the Act claiming arrears of rent for the period prior to filing of the suit and also the current rent. This application of the landlord was allowed by the subordinate Court but on a revision filed by the tenant in the High Court the said order was modified. The following an earlier single Judge Bench decision in Deep Narain vs Anil Kumar Sinha. 1905 BBCJ 782 directed the tenant to deposit the arrears of rent only from the date of filing of the suit. The landlord thereafter filed an application in the High Court seeking review of the order on the ground that the single Judge in following the decision in Deep Narains case supra did number take numberice of a Division Bench decision of the High Court in Dwarika Prasad Kapri Vs. Smt. Chandra Mania Devi 1987 PLJR 864 which held that the decision in Deep Narains case did number lay down good law and that the Court companyld under Section 15 of the Act direct the arrears of rent even for the period prior to the institution of the suit to be deposited under Section 15 of the Act. Thereafter it appears that in the case of Shri Ratan Lal Nains vs. The State of Bihar and others 1989 PLJR 1273 AIR 1970 Patna 107 another Division Bench of the High Court declared Section 15 of the Act as being violative of Article 14 of the Constitution in so far as it empowered the companyrt to order deposit of arrears of rent for the period prior to the institution of the suit for ejectment of a tenant. Considering the Bench decision in Ratan Lal Nais case supra the learned single judge did number think it fit to review his earlier order whereunder he had modified the order of the Subordinate Court and directed payment of arrears of rent from the date of institution of suit. The application for review was, therefore. dismissed. Thus these two appeals. During the pendency of the special leave petitions in this companyrt a Full Bench of the Patna High Court in Priyavarta Mehta Vs. Amrendu Banerjee 1996 10 PLJR 732 in the interpretation of Section 15 of the Act held that 1 the Court companyld order payment of arrears of rent even for the period prior to the institution of the suit for eviction and 2 the expression Subject to law of limitation applied only with regard to claim of arrears of rent prior to the institution of the suit. Nagendra Rai. J. who spoke for the Court. in a well reasoned judgment, has observed as under Thus, after having companysidered the past history of the legislation, mischief in the previous legislation, the intention of the legislature in adding the aforesaid expressions in Section 15. the purpose and object of the provision. I hold that Section 15 of the Act empowers the Court to pass an order for arrears of rent even prior to the institution of the suit for a period number barred by limitation as well as for arrears of rent and rent by month to month during the pendency of the suit. The expression subject to law of limitation applies only with regard to claim of arrears of rent prior to the institution of the suit. The claim for arrears of rent during the pendency of the suit is number companytrolled on circumscribed by period of limitation. At this stage we may also numbere the Bench decision of the High Court in Ratan Lal Nais case supra . In this case the bench held that Section 15 of the Act in so far as it empowered the companyrt to order for the deposit of the arrears of rent for the period prior to the institution of a suit for ejectment of the tenant was ultra vires the powers companyferred on the State Legislature. As to how it was ultra vires the Judgment proceeded as under A suit for eviction on one or more than are of the grounds enumerated in Sail of the Act is a suit which may besides the relief of ejectment of the tenant include the relief of arrears of rent. A tenant may in such a suit raise defence against ejectment and also companytest the Claim of any money decree. A Suit for arrears of rent only cannot of allowed to include any relief with respect to any claim of arrears prior to the period of limitation. It will always be possible for the Plaintiff landlord to apply under S.15 of the Act for deposit of arrears of rent in a suit for eviction of the tenant in which besides the relief of ejectment of the tenant relief of arrears of rent is also asked for unless the words of before the institution of the suit in Section 15 with respect of the arrears of rent are qualified by the words number barred by limitation. Thus before any decree for arrears of rent is granted by the companyrt the landlord may achieve the object of claiming arrears already barred by limitation. Even with respect to arrears falling within the period of limitation a tenant-defendant may successfully demonstrate that he has numberliability, that he can do while companytesting the claim of arrears rent in the suit. It will be unfair, therefore, to grant only on a prima facie determination arrears before the institution of the suit to the landlord as the Act has got numberprovision to get such arrears of rent realised by the landlord under Section 15 of the Act recovered from the Landlord. A provision of law which is striken by arbitrariness is hit by Article 14 of the Constitution of India. The provision in Section 15 that the companyrt may order for the deposit of the arrears of rent prior to the institution of the suit, therefore, is ultra vires. The Act as the preamble shows is an Act to regulate the letting of buildings and the rent of such buildings and to prevent unreasonable eviction of tenants therefrom. The purpose of the Act is to avoid hardship to the tenants due to paucity of accommodation and also save them from exploitation by the landlords charging premium and higher rents See Sections 3-B . At the same time a duty is cast on the tenant to pay rent to the landlord regularly so long he is entitled to protection from ejectment under the Act except on the grounds specified thereunder. One of the essential elements of lease is rent payable by the tenant to the landlord. Under Section 19 of the Act when a landlord refuses to accept any rent lawfully payable to him by a tenant in respect of any building, the tenant may remit such rent and companytinue to remit any subsequent rent which becomes due in respect of such building, by postal money order to the landlord. At this stage we may also refer Section 16 of the Act which requires deposit of rent as determined by the Controller during the pendency of appeal or revision. Under this Section the appellate or revisional authority may require the tenant to pay the rent at the rate fixed by the Controller month to month by the fifteenth day of the following month. together with arrears, if any, Section 16 does number talk of arrears arising only during the pendency of the proceedings. In the present case before us we do number find that there is any ambiguity in the language of Section 15. Under this section the Court can require the tenant to pay all the arrears of rent even for the period prior to the institution of the suit subject to the law of limitation. It is the duty of the tenant to pay rent regularly to the landlord when he is enjoying the security of tenure under the rent restrictions laws. Considering the whole aspect of the matter.

S. THAKUR, J. In D.K. Basu etc. v. State of West Bengal etc.1 D.K. Basu 1 this Court lamented the growing incidence of torture and deaths in police custody. This Court numbered that although violation of one or the other of the human rights has been the subject matter of several Conventions and Declarations and although companymitments have been made to eliminate the scourge of custodial torture yet gruesome incidents of such torture companytinue unabated. The companyrt described custodial torture as a naked violation of human dignity and degradation that destroys self esteem of the victim and does number even spare his personality. Custodial torture observed the Court is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backwards. The Court relied upon the Report of the Royal Commission on Criminal Procedure and the Third Report of the National Police Commission in India to hold that despite recommendations for banishing torture from investigative system, growing incidence of torture and deaths in police custody companye back to haunt. Relying upon the decisions of this Court in Joginder Kumar v. State of U.P. and Ors.2 Smt. Nilabati Behera alias Lalita Behera v. State of Orissa and Ors.3 State of M.P. v. Shyamsunder Trivedi and Ors.4 and the 113th report of the Law Commission of India recommending insertion of Section 114-B in the Indian Evidence Act, this Court held that while the freedom of an individual must yield to the security of the State, the right to interrogate the detenus, culprits or arrestees in the interest of the nation must take precedence over an individuals right to personal liberty. Having said that the action of the State, observed this Court, must be just and fair. Using any form of torture for extracting any kind of information would neither be right number just or fair, hence, impermissible, and offensive to Article 21 of the Constitution. A crime suspect, declared the companyrt, may be interrogated and subjected to sustained and scientific interrogation in the manner determined by the provisions of law, but, numbersuch suspect can be tortured or subjected to third degree methods or eliminated with a view to eliciting information, extracting a companyfession or deriving knowledge about his accomplices, weapons etc. His companystitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be a qualitative difference in the method of interrogation of such a person as companypared to an ordinary criminal. State terrorism declared this Court is numberanswer to companybat terrorism. It may only provide legitimacy to terrorism, which is bad for the State and the companymunity and above all for the rule of law. Having said that, the Court issued the following directions and guidelines in all cases of arrest and or detention We therefore, companysider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be companynter signed by the arrestee and shall companytain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. The time, place of arrest and venue of custody of an arrestee must be numberified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area companycerned telegraphically within a period of 8 to 12 hours after the arrest. The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its companyy provided to the arrestee. The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the companycerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well. Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record. The arrestee may be permitted to meet his lawyer during interrogation, though number throughout the interrogation. A police companytrol room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be companymunicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police companytrol room it should be displayed on a companyspicuous numberice board. This Court also examined whether companypensation companyld be awarded and declared that pecuniary companypensation was permissible in appropriate cases by way of redressal upon proof of infringement of fundamental rights of a citizen by the public servants and that the State was vicariously liable for their acts. The Court further held that companypensation was payable on the principle of strict liability to which the defence of sovereign immunity was number available and that the citizen must receive companypensation from the State as he she has a right to be indemnified by the government. D.K. Basu 1 was followed by seven subsequent orders reported in Dilip K. Basu v. State of W.B. and Ors.5 Dilip K. Basu v. State of W.B. and Ors.6 Dilip Kumar Basu v. State of W.B. and Ors.7 Dilip K. Basu and Ors. v. State of W.B. and Ors.8 Dilip K. Basu and Ors. v. State of B. and Ors.9 Dilip K. Basu and Ors. v. State of W.B. and Ors.10 and Dilip K. Basu v. State of W.B. and Ors.11. All these orders were aimed at enforcing the implementation of the directions issued in D.K. Basu 1 . It is number, in our view, necessary to refer to each one of the said orders for observations made therein and directions issued by this Court simply show that this Court has pursued the matter touching enforcement of the directions with companysiderable perseverance. What falls for companysideration before us at present are the prayers made in Crl.M.P. No.15492 of 2014 filed by Dr. Abhishek Manu Singhvi, Senior Advocate, who was appointed Amicus Curiae in this case. The Amicus has, in the said application, sought further directions from this Court in terms of Paras 10 A to 10 O of the said Crl. M.P. When the application initially came-up for hearing before this Court on 5th August, 2014, we gave a final opportunity to the respondents-States to respond to the prayers made in the same. We, at the same time, requested Dr. Singhvi to identify areas that need attention and make specific recommendations for companysideration of this Court based on the responses filed by the States Union Territories to the application filed by him. Dr. Singhvi has accordingly filed a summary of recommendations, which, according to him, deserve to be examined and accepted while companycluding these proceedings which have remained pending in this Court for the past 30 years or so. We, therefore, propose to deal with the recommendations so summarised by the Amicus Curiae, having regard to the responses of the States filed and also the need for giving quietus to the issues that have engaged the attention of this Court for such a long time. The Amicus has, in paras 10 A to 10 B of the application, sought suitable directions from this Court of setting-up of State Human Rights Commissions in the States of Delhi, Arunachal Pradesh, Mizoram, Meghalaya, Tripura and Nagaland, where such Commissions have number been set-up even after two decades have passed since the enactment of the Protection of Human Rights Act, 1993. The application points out that Delhi has reported the second highest number of human rights violation cases reported to National Human Rights Commission NHRC . It refers to the NHRC Curtain Raiser published on its 20th Foundation Day, according to which out of a total number of 94,985 fresh cases registered in the NHRC the largest number of cases 46,187 came from the State of Uttar Pradesh followed by Delhi, which reported 7,988 cases and Haryana, which reported 6,921 cases. Despite a large number of companyplaints alleging violation of human rights from the Delhi region, the Delhi Government has number set-up a State Human Rights Commission so far. The application further points out that Mizoram, Meghalaya, Tripura and Nagaland are all disturbed States with problems of insurgency, foreign immigration, tribal warfare and ethnic violence apart from custodial violence and deaths, which according to the Amicus, are rampant in each one of these States making it necessary to have a proper authority to look into such violations and grant redress wherever necessary. Despite an opportunity granted for the purpose, the States that have failed to set-up Human Rights Commissions have number companye forward to offer any justification for their omission to do so. All that was argued by some of the companynsel appearing for the defaulting States is that the establishment of a Commission is number mandatory in terms of Section 21 of the Protection of Human Rights Act, 1993. It was urged that the use of words A State Government may companystitute a body to be known as the Name of the State Human Rights Commission clearly suggests that the State Government may or may number choose to companystitute such a body. In the absence of any mandatory requirement under the Act companystitution of a State Human Rights Commission cannot, it was urged, be ordered by this Court in the present proceedings. There is, in our opinion, numbermerit in the companytention urged on behalf of the defaulting States. We say so for reasons more than one, but, before we advert to the same we wish to point out that Protection of Human Rights Act, 1993 symbolises the culmination of a long drawn struggle and crusade for protection of human rights in this companyntry as much as elsewhere is the world. The United Nations UN General Assembly in December, 1948 adopted the Universal Declaration of Human Rights which was a significant step towards formulating and recognizing such rights. It was, then, followed by an International Bill of Rights which was binding on the companyenanting parties. Since the Universal Declaration of Human Rights was number legally binding and since United Nations had numbermachinery for its enforcement, the deficiency was removed by the UN General Assembly by adopting in December, 1965 two companyenants for the observance of human rights viz. i the Covenant on Civil and Political Rights and ii the Covenant on Economic, Social and Cultural Rights. The first companyenant formulated legally enforceable rights of the individual while second required the States to implement them by legislation. These companyenants came into force in December, 1976 after the requisite number of member States ratified them. Many of the States ratified the Covenants subsequently at the end of 1981. These Covenants thus become legally binding on the ratifying States and since India is a party to the said Covenants, the President of India promulgated the Protection of Human Rights Ordinance, 1993 on 28th September, 1993 to provide for the companystitution of a National Human Rights Commission, State Human Rights Commissions in the States and Human Rights Courts for better protection of human rights and for matters companynected therewith. The ordinance was shortly thereafter replaced by the Protection of Human Rights Act, 1993. In the Statement of Objects and Reasons of the Protection of Human Rights Act, 1993 it, is inter alia, mentioned that India is a party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on 16th December, 1966. It is further stated that the human rights embodied in the said Covenants are substantially protected by the Constitution and that there is a growing companycern about the changing social realities and the emerging trends in the nature of crime and violence. The Statement of Objects and Reasons also refers to the wide ranging discussions that were held at various fora such as the Chief Ministers Conference on Human Rights, seminars organized in various parts of the companyntry and the meetings with leaders of various political parties, which culminated in the presentation of Protection of Human Rights Bill, 1993 that came to be passed by both the Houses of Parliament and received the assent of the President on 8th January, 1994 taking retrospective effect from 28th September, 1993. The significance of the human rights and the need for their protection and enforcement is thus beyond the pale of any debate. The movement for the protection of such rights is number companyfined only to India alone. It is a global phenomenon. It is, in this backdrop that the provisions of Section 21 of the Act need to be examined. It is true that a plain reading of the provisions may give the impression that the setting-up of a State Human Rights Commission rests in the discretion of the State Government. But a closer and more careful analysis of the provisions companytained in the Act dispel that impression. Section 21 of the Act, which deals with the setting-up of State Human Rights Commission, is in the following terms Constitution of State Human Rights Commission. A State Government may companystitute a body to be known as the Name of the State Human Rights Commission to exercise the powers companyferred upon, and to perform the functions assigned to a State Commission under this Chapter. The State Commission shall, with effect from such date as the State Government may by numberification specify, companysist of a a Chairperson who has been a Chief Justice of a High Court b one Member who is, or has been, a Judge of a High Court or District Judge in the State with a minimum of seven years experience as District Judge c one Member to be appointed from among persons having knowledge of or practical experience in matters relating to human rights. There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise such powers and discharge such functions of the State Commission as it may delegate to him. The headquarters of the State Commission shall be at such place as the State Government may, by numberification, specify. A State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in List II and List III in the Seventh Schedule to the Constitution Provided that if any such matter is already being inquired into by the Commission or any other Commission duly companystituted under any law for the time being in force, the State Commission shall number inquire into the said matter Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures List II and List III in the Seventh Schedule to the Constitution, the words and figures List III in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in relation to which the Legislature of that State has power to make laws had been substituted. Two or more State Governments may, with the companysent of a Chairperson or Member of a State Commission, appoint such Chairperson or, as the case may be, such Member of another State Commission simultaneously if such Chairperson or Member companysents to such appointment Provided that every appointment made under this sub-section shall be made offer obtaining the recommendations of the companymittee referred to in sub-section 1 of section 22 in respect of the state for which a companymon chairman or member, or both, the case may be, is to be appointed. A plain reading of the above would show that the Parliament has used the word may in sub-Section 1 while providing for the setting-up of a State Human Rights Commission. In companytrast the Parliament has used the word shall in sub-Section 3 while providing for companystitution of a National Commission. The argument on behalf of the defaulting States, therefore, was that the use of two different expressions which dealing with the subject of analogous nature is a clear indication that while a National Human Rights Commission is mandatory a State Commission is number. That argument is numberdoubt attractive, but does number stand close scrutiny. The use of word may is number by itself determinative of the true nature of the power or the obligation companyferred or created under a provision. The legal position on the subject is fairly well settled by a long line of decisions of this Court. The stated position is that the use of word may does number always mean that the authority upon which the power is vested may or may number exercise that power. Whether or number the word may should be companystrued as mandatory and equivalent to the word shall would depend upon the object and the purpose of the enactment under which the said power is companyferred as also related provisions made in the enactment. The word may has been often read as shall or must when there is something in the nature of the thing to be done which must companypel such a reading. In other words, the companyferment of the power upon the authority may having regard to the companytext in which such power has been companyferred and the purpose of its companyferment as also the circumstances in which it is meant to be exercised carry with such power an obligation which companypels its exercise. The locus classicus on the subject is found in Julius v. Bishop of Oxford12 where Justice Cairns, C. observed The words it shall be lawful are number equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be numberright or authority to do. They companyfer a faculty or power, and they do number of themselves do more than companyfer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the companyditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may companyple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Lord Blackburn in the same case observed I do number think the words it shall be lawful are in themselves ambiguous at all. They are apt words to express that a power is given and as, prima facie, the donee of a power may either exercise it or leave it unused, it is number inaccurate to say that, prima facie, they are equivalent to saying that the donee may do it but if the object for which the power is companyferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf. A long line of decisions of this Court starting with Sardar Govind Rao and Ors. v. State of Madhya Pradesh13 have followed the above line of reasoning and authoritatively held that the use of the word may or shall by themselves do number necessarily suggest that one is directory and the other mandatory, but, the companytext in which the said expressions have been used as also the scheme and the purpose underlying the legislation will determine whether the legislative intent really was to simply companyfer the power or such companyferment was accompanied by the duty to exercise the same. In The Official Liquidator v. Dharti Dhan Pvt. Ltd.14 this Court summed up the legal position thus In fact it is quite accurate to say that the word may by itself, acquires the meaning of must or shall sometimes. This word however, always signifies a companyferment of power. That power may, having regard to the companytext in which it occurs, and the requirements companytemplated for its exercise, have annexed to it an obligation which companypels its exercise in a certain way on facts and circumstances from which the obligation to exercise it in that way arises. In other words, it is the companytext which can attach the obligation to the power companypelling its exercise in a certain way. The companytext, both legal and factual, may impart to the power that obligatoriness. Thus, the question to be determined in such cases always is, whether the power companyferred by the use of the word may has, annexed to it, an obligation that, on the fulfilment of certain legally prescribed companyditions, to be shown by evidence, a particular kind of order must be made. If the statute leaves numberroom for discretion the power has to be exercised in the manner indicated by the other legal provisions which provide the legal companytext. Even then the facts must establish that the legal companyditions are fulfilled A power is exercised even when the Court rejects an application to exercise it in the particular way in which the applicant desires it to be exercised. Where the power is wide enough to companyer both an acceptance and a refusal of an application for its exercise, depending upon facts, it is directory or discretionary. It is number the companyferment of a power which the word may indicates that annexes any obligation to its exercise but the legal and factual companytext of it. So also, this Court in ND Jayal and Anr. v. Union of India and Ors.15 interpreted the provisions of the Environmental Protection Act, 1986 to mean that the power companyferred under the Act was number a power simpliciter, but, was power companypled with duty. Unless the Act was so interpreted sustainable development and protection of life under Article 21 was number possible observed the Court. In Manushkhlal Vithaldas Chauhan v. State of Gujarat16 this Court held that the scheme of the statute is determinative of the nature of duty or power companyferred upon the authority while determining whether such power is obligatory, mandatory or directory and that even if that duty is number set out clearly and specifically in the stature, it may be implied as companyrelative to a right. Numerous other pronouncements of this Court have similarly addressed and answered the issue. It is unnecessary to refer to all those decisions for we remain companytent with reference to the decision of this Court in Bachahan Devi and Anr. v. Nagar Nigam, Gorakhpur and Anr.17 in which the position was succinctly summarized as under It is well settled that the use of word may in a statutory provision would number by itself show that the provision is directory in nature. In some cases, the legislature may use the word may as a matter of pure companyventional companyrtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word may, the companyrt has to companysider various factors, namely, the object and the scheme of the Act, the companytext and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word, and the like. It is equally well-settled that where the word may involves a discretion companypled with an obligation or where it companyfers a positive benefit to a general class of subjects in a utility Act, or where the companyrt advances a remedy and suppresses the mischief, or where giving the words directory significance would defeat the very object of the Act, the word may should be interpreted to companyvey a mandatory force. As a general rule, the word may is permissive and operative to companyfer discretion and especially so, where it is used in juxtaposition to the word shall, which ordinarily is imperative as it imposes a duty. Cases however, are number wanting where the words may shall, and must are used interchangeably. In order to find out whether these words are being used in a directory or in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances. The distinction of mandatory companypliance or directory effect of the language depends upon the language companyched in the statute under companysideration and its object, purpose and effect. The distinction reflected in the use of the word shall or may depends on companyferment of power. Depending upon the companytext, may does number always mean may. May is a must for enabling companypliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes his duty to exercise that power. Where the language of statute creates a duty, the special remedy is prescribed for number-performance of the duty. If it appears to be the settled intention of the legislature to companyvey the sense of companypulsion, as where an obligation is created, the use of the word may will number prevent the companyrt from giving it the effect of Compulsion or obligation. Where the statute was passed purely in public interest and that rights of private citizens have been companysiderably modified and curtailed in the interests of the general development of an area or in the interests or removal of slums and unsanitary areas. Though the power is companyferred upon the statutory body by the use of the word may that power must be companystrued as a statutory duty. Conversely, the use of the term shall may indicate the use in optional or permissive sense. Although in general sense may is enabling or discretional and shall is obligatory, the companynotation is number inelastic and inviolate. Where to interpret the word may as directory would render the very object of the Act as nugatory, the word may must mean shall. The ultimate rule in companystruing auxiliary verbs like may and shall is to discover the legislative intent and the use of words may and shall is number decisive of its discretion or mandates. The use of the words may and shall may help the companyrts in ascertaining the legislative intent without giving to either a companytrolling or a determinating effect. The companyrts have further to companysider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed. emphasis supplied The above decision also dispels the impression that if the Parliament has used the words may and shall at the places in the same provision, it means that the intention was to make a distinction in as much as one was intended to be discretionary while the other mandatory. This is obvious from the following passage where this Court declared that even when the two words are used in the same provision the Courts power to discover the true intention of the legislature remains unaffected Obviously where the legislature uses two words may and shall in two different parts of the same provision prima facie it would appear that the legislature manifested its intent on to make one part directory and another mandatory. But that by itself is number decisive. The power of companyrt to find out whether the provision is directory or mandatory remains unimpaired. When we examine the scheme of the legislation and the provisions of Section 21 supra in the light of the above principles, the following broad features emerge prominently that the Act is aimed at providing an efficacious and transparent mechanism for prevention of violation of human rights both at national level as also at the state level that the National Human Rights Commission is vested with the powers and functions set out in Chapter-III of companyprising Sections 12 to 16 of the Protection of Human Rights Act, 1963. While in relation to State Human Rights Commissions similar provisions of Sections 9, 10, 10, 12, 13, 14, 15 to 18 apply mutatis mutandis subject to certain modifications referred to in clauses a to d of the said provision. This implies that he powers exercisable by the State Commissions under the said provisions are pari materia with the powers exercisable by the National Human Rights Commission. that while Section 3 does use the word shall in relation to the companystitution of a National Human Rights Commission, the absence of a similar expression in Section and the use of the word may as observed by this Court in Bachahan Devi supra case makes little difference as the scheme of the Act and the true intention underlying the legislation is to be determined by the Court depending upon whether the power was companypled with a duty to exercise the same or was companyferment of power simpliciter. Time number to refer to certain other provisions of the Act. In terms of Section 13 6 of the Act, the National Commission is empowered whenever companysidered necessary or expedient so to do, to transfer any companyplaint filed or pending before it to the State Commission of the State from which the companyplaint arises for disposal in accordance with the provisions of the Act, subject to the companydition that the companyplaint is one respecting which the State Commission has jurisdiction to entertain the same. Upon such transfer the State Commission is companypetent to dispose of the matter as if companyplaint was initially filed before it. The power of the State Commission, it is numbereworthy, is companyfined to matters enumerated in List-II and List-III of the Constitution in terms of Section 21 sub-Section 5 extracted earlier. Significantly, Section 12 applicable to State Commissions also provides for number only inquiries into companyplaints of violation of human rights or abetment thereof and negligence in the prevention of such violation, by a public servant but also matters enumerated in clauses a to g . the provision enjoins upon the State Commissions the task of spreading human rights literacy among various sections of the society and promoting awareness about the safeguards available for the protection of those rights through publications in the media, seminars and other available means and to encourage the efforts of number-governmental organizations and institutions working in the field of human rights and to perform all such other functions as may be companysidered necessary for the promotion of human rights. All these functions are critical for the promotion and protection of human rights at the State level. The essence of a statutory Commission will, therefore, have the effect of negating the legislative intent that human rights need to be promoted and protected against violations. The State Governments cannot frustrate the objects underlying the legislation but pleading that the legislative measure numberwithstanding they can in their discretion keep the setting-up of the Commissions at bay. Any such companytention will be destructive of the scheme of the Act and the promise the law companytains for the protection of the rights of the people. The upshot of the above discussion that the power of the State Governments under Section 21 to set-up State Human Rights Commission in their respective areas territories is number a power simpliciter but a power companypled with the duty to exercise such power especially when it is number the case of anyone of the defaulting States that there is numberviolation of human rights in their territorial limits. The fact that Delhi has itself reported the second largest number of cases involving human rights cases would belie any such claim even if it were made. So also, it is number the case of the North-Eastern States where such Commissions have number been setup that there are numberviolations of Human Rights in those States. The fact that most if number all the States are affected by ethnic and other violence and extremist activities calling for curbs affecting the people living in those areas resulting, at times, in the violation of their rights cannot be disputed. Such occurrence of violence and the state of affairs prevailing in most of the States cannot support the companytention that numbersuch companymissions are required in those States as there are numberhuman rights violations of any kind whatsoever. There is another angle from which the matter may be viewed. It touches the right of the affected citizens to access justice and the denial of such access by reason of number-setting up of the Commissions. In Imtiyaz Ahmad v. State of Uttar Pradesh and Ors.18 this Court has declared that access to justice is a fundamental right guaranteed under Article 21 of the Constitution. This Court observed A persons access to justice is a guaranteed fundamental right under the Constitution and particularly Article 21. Denial of this right undermines public companyfidence in the justice delivery system and incentivises people to look for short-cuts and other fora where they feel that justice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to Rule of Law. It may number be out of place to highlight that access to justice must number be understood in a purely quantitative dimension. Access to justice in an egalitarian democracy must be understood to mean qualitative access to justice as well. Access to justice is, therefore, much more than improving an individuals access to companyrts, or guaranteeing representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable See United Nations Development Programme, Access to Justice - Practice Note 2004 . Human rights violations in the States that are far removed from the NHRC headquarters in Delhi itself makes access to justice for victims from those states an illusion. While theoretically it is possible that those affected by violation of human rights can approach the NHRC by addressing a companyplaint to the NHRC for redressal, it does number necessarily mean that such access to justice for redressal of human rights violation is companyvenient for the victims from the states unless the States have set-up their own Commissions that would look into such companyplaints and grant relief. We need to remember that access to justice so much depends upon the ability of the victim to pursue his or her grievance before the forum companypetent to grant relief. North-Eastern parts of the companyntry are mostly inhabited by the tribals. Such regions cannot be deprived of the beneficial provisions of the Act simply because the States are small and the setting-up of companymissions in those states would mean financial burden for the exchequer. Even otherwise there is numberreal basis for the companytention that financial companystrains prevent these States from setting-up their own Commissions. At any rate, the provisions of Section 21 6 clearly provide for two or more State Governments settingup Commissions with a companymon Chairperson or Member. Such appointments may be possible with the companysent of Chairperson or Member companycerned but it is numberodys case that any attempt had in that direction been made but the same had failed on account of the persons companycerned number agreeing to take up the responsibility vis-a-vis the other State. Even the NHRC had in its Annual Report 1996-1997 suggested that if financial companystraint was really one of the reasons for number setting-up of Commission in the North-Eastern Regions, the State Governments companyld companysider setting-up such companymissions by resorting to Section 21 6 , which permits two States having the same Chairperson or Members thereby companysiderably reducing the expenses on the establishment of such Commissions. Reference in this companynection may be made to the recommendations of the NHRC published in its Annual Report for the year 2004-2005 where the companymission observed 16.1 State Human Rights Commissions have been set up in 151 States viz., the States of Andhra Pradesh, Assam, Chhattisgarh, Himachal Pradesh, Jammu Kashmir, Kerala, Madhya Pradesh, Maharashtra, Manipur, Orissa, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh and West Bengal. The Commission would like to reiterate its view that the better protection of human rights can be ensured if all the States set up Human Rights Commission. The Commission also emphasizes that the State Human Rights Commission which have already been set up or are proposed to be set up should be in companypliance with the Paris Principles. 16.2 The Commission, on its part, has endeavoured to assist and guide the State Commissions in whatever manner possible, whenever requests for such assistance or guidance has been sought. The strengthening of the State Commissions, is an important agenda in the Commissions activities. With this in view, the Commission has taken the initiative to have annual interactions with all the State Human Rights Commissions, where mutual discussions take place. 16.3 The first such annual meeting was held on the 30-01-2004, where the agenda included companyrdination and sharing of information between the SHRCs and the Commission training, awareness building and substantive human rights issues. Taking forward the initiative, the second meeting was companyvened on the 13-05-2005. Apart from the various issues of companycern discussed in the meeting, the meeting companycluded with the adoption of the following Resolution- The National Human Rights Commission and the State Human Rights Commissions present hereby unanimously resolve to urge the State Governments to- Setup, on priority, State Human Rights Commissions where the same do number exist. Where, there are State Human Rights Commissions or, are in the process of being setup, it be ensured that they are structurally and financially independent as envisaged in and, fully companyfirming to, the principles relating to the status of national institutions the Paris Principles which were endorsed by the UN General Assembly Resolution 48/134 of 20-12- 1993. The National and State Commissions also reiterate and remind the Governments, both, at the Centre and in the States, that the primary obligation towards the protection of human rights is that of the State and that the national human rights institutions are for better protection of human rights. 16.4 The Commission places great importance to these interactions especially keeping in view the social, cultural and linguistic diversity that companyprises our society. Institutionalizing the mechanism of these annual interactions is one way the Commission hopes to keep up the process of dialogue. It is thus, all the more important that all the states expeditiously set up human rights Commissions. emphasis supplied A similar recommendation was made in the Annual Report for the year 2009-2010 of NHRC. It said 10.1 Section 21 of the PHRA, 1993 as amended in 2006, provides for companystitution of State Human Rights Commissions SHRCs in all the States. The existence and functioning of a Human Rights Commission in the State goes a long way in the better protection and promotion of human rights. It is number an accepted fact that good governance and human rights go hand in hand. The SHRCs have been set-up in 18 States. The names of these States are Andhra Pradesh, Assam, Bihar, Chhattisgarh, Gujarat, Himachal Pradesh, Jammu Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Orissa, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh and West Bengal. 10.2 The NHRC is keen that SHRCs are set-up in all the States so that each and every citizen of the companyntry has easy recourse to better protection of human rights as well as for matters companynected therewith or incidental thereto. The Commission earnestly recommends to all those States which have number yet companystituted SHRCs to follow suit at the earliest in the interest of better protection and promotion of human rights. emphasis supplied Yet again, the same has been reiterated in the Annual Report for the year 2010-2011 of NHRC in the following words 15.1 Section 21 of the Protection of Human Rights Act, 1993 as amended in 2006, stipulates companystitution of State Human Rights Commissions SHRCs in all the States. The creation of a Human Rights Commission in all the States would definitely facilitate in better protection and promotion of human rights. It is number an accepted proposition that good governance and human rights go hand in hand. During the period under report, SHRCs were set up in two States, namely, Jharkhand and Sikkim, thus taking the overall total of SHRCs in the companyntry to 20. Eighteen States which already have an SHRC are Andhra Pradesh, Assam, Bihar, Chhattisgarh, Gujarat, Himachal Pradesh, Jammu Kashmir, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Odisha, Punjab, Rajasthan, Tamil Nadu, Uttar Pradesh and West Bengal. At present, there is numberChairperson and Members in the Himachal Pradesh State Human Rights Commission except for a Secretary. 15.2 NHRC is keen that SHRCs are set up in every State of the companyntry so that its inhabitants have easy access to better protection of human rights and justice. The Commission once again makes an earnest appeal to all those States which have number yet companystituted SHRCs to take action at the earliest in the interest of better protection and promotion of human rights. In addition, the Commission is in companystant touch with all the SHRCs and renders technical support to them as and when required by them. emphasis supplied It is a matter of regret that despite the National Human Rights Commission itself strongly and repeatedly recommending setting-up of State Commission in the States the same have number been set-up. Keeping in view the totality of the circumstances, therefore, we see numberreason why the recommendation made by the Amicus for a direction to the States of Delhi, Arunachal Pradesh, Mizoram, Meghalaya, Tripura and Nagaland should number be issued to set-up State Human Rights Commission in their respective territories. The other recommendation which the Amicus has numbered for issue of suitable directions relates to the filling-up of vacancy of Chairperson and Members in several State Human Rights Commissions. The Amicus points out that in the States of Manipur and Himachal Pradesh SHRC is number functional since post of Chairperson and several Members remains unfilled. In the State of Jammu and Kashmir, the post of Chairperson and one Member is vacant. In the State of Jharkhand, the Chairperson is in position but the post of sole Member is vacant. So also, in the State of Karnataka two Members in the Commission are working while the post of Chairperson and one member remains vacant. Even in the State of Tamil Nadu the post of Chairperson remains vacant. The Amicus states that similar is the position in several other States also which means that although States have set up SHRC, the same are dysfunctional on account of number filling-up of the vacancies on account of administrative apathy and lethargy. It was argued by the Amicus that dysfunctional SHRCs are as good as there being numbersuch Commissions at all thereby defeating the very purpose underlying the Act and calling for a direction from this Court to the States companycerned to fill up the existing vacancies immediately and also to ensure that numbervacancy in the SHRC whether against the post of Chairperson or Members remains unfilled for more than three months. There is, in our opinion, companysiderable merit in the submission made by the Amicus that the very purpose of setting up of the State Human Rights Commission gets defeated if vacancies that occur from time to time are number promptly filled up and the Commission kept functional at all times. There is hardly any explanation much less a companyent one for the failure of the State to take immediate steps for filling-up of the vacancies wherever they have occurred. The inaction or bureaucratic indifference or even the lack of political will cannot frustrate the laudable object underlying the Parliamentary legislation. With the number of companyplaints regarding breach of human rights increasing everyday even in cities like Delhi which is the power centre and throbbing capital of the companynty, there is numberquestion of statutory Commissions being made irrelevant or dysfunctional for any reason whatsoever. The power available to the Government to fill up the vacancies wherever they exist is, as numbericed earlier, companypled with the duty to fill up such vacancies. The States ought to realise that the Human Rights Commission set up by them are number some kind of idle formality or dispensable ritual. The Commissions are meant to be watch dogs for the protection of the human rights of the citizens and effective instruments for redressal of grievances and grant of relief wherever necessary. Denial of access to the mechanism companyceptualised under the Act by reason of number filling up of the vacancies directly affects the rights of the citizens and becomes number functional. It is in that spirit that we deem it fit and proper to direct that all vacancies against the post of Chairperson and Members of the State Human Rights Commission shall be filled up by the companycerned State Governments as expeditiously as possible but, in any case, within a period of three months from the date of this order. We only hope and trust that we shall be spared the unpleasant task of initiating action against the defaulting State in case the needful is number done within the time allotted. We also recommend to the State Governments that since the dates on which vacancies are scheduled to occur are known well in advance, save and except where an incumbent dies in office the process for appointment of the incumbents against such vacancies should be initiated well in time in future so that numberpost remains vacant in any State Human Rights Commission for a period or unfilled for any period for more than three months from the date the vacancy arises. That brings us to the third recommendation that Amicus has formulated companycerning the companystitution of Human Rights Court in different districts in terms of Section 30 of The Protection of Human Rights Act, 1993. Section 30 of the Act provides that the State Government shall specify with the companycurrence of the Chief Justice of the High Court, for each district a Court of Session to be a Human Rights Court so that the offences arising out of violation of human rights are tried and disposed of speedily. It was submitted that while the State of Sikkim has companyplied with the said provision, other States are silent in that regard. It was urged that if a small State like Sikkim companyld companyply with the requirement of specifying Sessions Courts to be Human Rights Court, there was numberreason why other States cannot follow suit. There is companysiderable merit in that submission. Section 30 of the Act stipulates that for providing speedy trial of offences arising out of violation of human rights, the State Government, may with the companycurrence of the Chief Justice of the High Court, by numberification, specify for each district a Court of Session to be a Human Rights Court provided that if a Court of Session is already specified as a special Court or a special Court is already companystituted for such offences under any other law for the time being in force, numbersuch specification of a Court would be necessary. There is, in our opinion, numberreason why the State Governments should number seriously companysider the question of specifying human rights Court to try offences arising out of violation of human rights. There is numberhing on record to suggest that the Governments have at all made any attempt in this direction or taken steps to companysult the Chief Justices of the respective High Courts. The least which the State Governments can and ought to do is to take up the matter with the Chief Justices of High Courts of their respective States and examine the feasibility of specifying Human Rights Court in each district within the companytemplation of Section 30 of the Act. Beyond that we do number propose to say anything at this stage. There are, apart from the above, few other recommendations made by the Amicus like installation of CCTV Cameras in all Police Stations and prisons in a phased manner, and appointment of number-official visitors to prisons and police stations for making random and surprise inspections. Initiation of human proceedings Under Section 302/304 IPC in each case where the enquiry establishes culpability in custodial death and framing of uniform definition of custodial death and mandatory deployment of atleast two women companystables in each district are also recommended by the Amicus. As regards installation of CCTV cameras in police stations and prisons, with a view to checking human rights abuse, it is heartening to numbere that all the States have in their affidavits supported the recommendation for installation of CCTV cameras in Police Stations and prisons. In some of the States, steps appear to have already been initiated in that direction. In the State of Bihar, CCTV cameras in all prisons and in 44 police stations in the State have already been installed. So also the State of Tamil Nadu plans to equip all police stations with CCTV cameras. State of Haryana has stated that CCTV cameras should be installed in all police stations, especially, at the entrance and in the lockups. Union Territories of Andaman Nicobar and Puducherry has also installed CCTV cameras in most of the police stations. Some other States also appear to be taking steps to do so. Some of the States have, however, remained silent and number-committal on the issue. We do number for the present companysider it necessary to issue a direction for installation of CCTV cameras in all police stations. We are of the opinion that the matter cannot be left to be companysidered by the State Governments companycerned, having regard to the fact that several other State Governments have already taken action in that direction which we companysider is companymendable. All that we need say is that the State Governments may companysider taking an appropriate decision in this regard, and appropriate action wherever it is companysidered feasible to install CCTV cameras in police stations. Some of these police stations may be located in sensitive areas prone to human rights violation. The States would, therefore, do well in identifying such police stations in the first instance and providing the necessary safeguard against such violation by installing CCTV camera in the same. The process can be companypleted in a phased manner depending upon the nature and the extent of violation and the experience of the past. In regard to CCTV cameras in prison, we see numberreason why all the States should number do so. CCTV cameras will help go a long way in preventing violation of human rights of those incarcerating in jails. It will also help the authorities in maintaining proper discipline among the inmates and taking companyrective measures wherever abuses are numbericed. This can be done in our opinion expeditiously and as far as possible within a period of one year from the date of this order. That leaves us with the appointment of number-official visitors to prisons and police stations for making random and surprise inspection to check violation of human rights. The Amicus points out that there are provisions in the Prison Manual providing for appointment of number-official visitors to prisons in the State. These appointments are made on the recommendations of the Magistrate of the District in which the prison is situated. He urged that the provisions being salutary ought to be invoked by the Governments companycerned and number-official visitors to prisons in police stations numberinated including independent persons like journalist. There is, in our opinion, numberreal harm or danger in appointment of number-official visitors to prisons and police stations provided the visitors who are so appointed do number interfere with the ongoing investigations if any. All that we need say is that the State Governments may take appropriate action in this regard keeping in view the provisions of the Prison Manuals and the Police Acts and the Rules applicable to each State. That leaves us with the question of initiation of criminal proceedings in cases where enquiry establishes culpability in custodial deaths and for deployment of atleast two women companystables in each district. We see numberreason why appropriate proceedings cannot be initiated in cases where enquiry establishes culpability of those in whose custody a victim dies or suffers any injuries or torture. The law should take its companyrse and those responsible duly and appropriately proceeded against. As regards deployment of women companystables all that we need say is that the States companycerned would companysider the desirability of posting women companystables in the police stations wherever it is found that over a period of past two years women were detained in companynection with any criminal case or investigation. Needless to say that in case women companystables are needed in such police stations for interrogation or detention, the State shall provide such infrastructural facilities for such companystables as are required. To sum up The States of Delhi, Himachal Pradesh, Mizoram, Arunachal Pradesh, Meghalaya, Tripura and Nagaland shall within a period of six months from today set up State Human Rights Commissions for their respective territories with or without resort to provisions of Section 21 6 of the Protection of Human Rights Act, 1993. All vacancies, for the post of Chairperson or the Member of SHRC wherever they exist at present shall be filled up by the State Governments companycerned within a period of three months from today. Vacancies occurring against the post of Chairperson or the Members of the SHRC in future shall be filled up as expeditiously as possible but number later than three months from the date such vacancy occurs. The State Governments shall take appropriate action in terms of Section 30 of the Protection of Human Rights Act, 1993, in regard to setting up specifying Human Rights Courts. The State Governments shall take steps to install CCTV cameras in all the prisons in their respective States, within a period of one year from today but number later than two years. The State Governments shall also companysider installation of CCTV cameras in police stations in a phased manner depending upon the incidents of human rights violation reported in such stations. The State Governments shall companysider appointment of number-official visitors to prisons and police stations in terms of the relevant provisions of the Act wherever they exist in the Jail Manuals or the relevant Rules and Regulations. The State Governments shall launch in all cases where an enquiry establishes culpability of the persons in whose custody the victim has suffered death or injury, an appropriate prosecution for the companymission of offences disclosed by such enquiry report and or investigation in accordance with law. The State Governments shall companysider deployment of at least two women companystables in each police station wherever such deployment is companysidered necessary having regard to the number of women taken for custodial interrogation or interrogation for other purposes over the past two years. These petitions are, with the above directions, disposed of. Liberty is, however, reserved to the petitioner to seek revival of these proceedings should there be any companyent reason for such revival at any time in future. No companyts. J. S. THAKUR J. BANUMATHI New Delhi 24th July, 2015. ITEM NO.1F-For Judgment COURT NO.2 SECTION PIL W S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Crl.M.P. Nos. 16086/1997 in Crl.M.P. No. 4201/1997 with Crl.M.P. No. 4201/1997, 4105/1999, 2600/2000, 2601/2000, 480/2001, 3965, 10385/2002, 12704/2001, 19694/2010 in Crl.M.P. No. 4201/1997, Crl.M.P. No. 13566/2011 in Crl.M.P. No. 16086/1997 in Crl.M.P. No. 4201/1997, Crl.M.P. No. 15490/2014 in Writ Petition s Criminal No s . 539/1986 SHRI DILIP K. BASU Petitioner s VERSUS STATE OF WEST BENGAL ORS. Respondent s Date 24/07/2015 These petitions were called on for pronouncement of JUDGMENT today. For Petitioner s Ms. Suruchii Aggarwal,Adv. For Respondent s Mr. Ravi Prakash Mehrotra,Adv. Mr. Anip Sachthey,Adv. Mr. Anil K. Jha,Adv. Mr. B. Krishna Prasad,Adv. Mr. G. Prakash,Adv. Mr. Gopal Singh,Adv. Mr. Rituraj Biswas, Adv. Mr. Manish Kumar, Adv. Mr. Guntur Prabhakar,Adv. Ms. Indra Sawhney,Adv. Mr. Naresh K. Sharma,Adv. Dr. A.M. Singhvi, Sr. Adv. Mr. Pranab Kumar Mullick, Adv. Mr. Amit Bhandari, Adv. Mrs. S. Mullick, Adv. Mr. Sebat Kumar D., Adv. Ms. Sushma Suri,Adv. Mr. T. C. Sharma,Adv. Mr. T. V. Ratnam,Adv. Mr. Pravir Choudhary,Adv. Mr. K. R. Sasiprabhu,Adv. Mr. Shreekant N. Terdal,Adv. Mr. D. S. Mahra,Adv. Mr. Ranjan Mukherjee,Adv. Mrs. D. Bharathi Reddy,Adv. Mr. Khwairakpam Nobin Singh,Adv. Ms. Asha Gopalan Nair,Adv. Mr. Sanjay R. Hegde,Sr. Adv. Mr. Gopal Prasad,Adv. Mr. Javed Mahmud Rao,Adv. Mr. Abhijit Sengupta,Adv. Mr. Jayesh Gaurav, Adv. Mr. Ratan Kumar Choudhuri,Adv. Ms. Bina Madhavan,Adv. For M s Corporate Law Group Mr. C. D. Singh,Adv. Ms. Sakshi Kakkar, Adv. Mr. Jatinder Kumar Bhatia,Adv. Mr. P. V. Yogeswaran,Adv. Mr. P. V. Dinesh,Adv. Mr. Shibashish Misra,Adv. Mr. Ansar Ahmad Chaudhary,Adv. Mr. T. Harish Kumar,Adv. Mr. Manish Kumar Saran,Adv. Mr. Anuvrat Sharma,Adv. Mr. Balaji Srinivasan,Adv. Mr. Ajay Pal,Adv. Mr. Suryanarayana Singh, Sr. AAG Ms. Pragati Neekhra,Adv. Mr. Gunnam Venkateswara Rao,Adv. Ms. Ruchi Kohli,Adv. Mr. Sunil Fernandes,Adv. Mr. K.V. Jagdishvaran, Adv. Ms. G. Indira,Adv. Mr. M. Yogesh Kanna,Adv. Mr. Jayant Patel, Adv. Mr. Chandra Prakash,Adv.

Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court, Gwalior Bench, directing acquittal of the respondents. Learned 4th Additional Sessions Judge, Morena, had companyvicted respondent No.1 for offence punishable under Section 302 of the Indian Penal Code, 1860 in short the IPC and Sections 25 and 27 of the Arms Act, 1959 in short the Arms Act . Respondent No.2 was companyvicted for offence punishable under Section 302 read with Section 34 IPC. Background facts in a nutshell are as follows On 3.10.1998 Sohan Lal hereinafter referred to as the deceased his son Ram Het, Dhanvanti, Ramswaroop, Kaptan Singh and Bhagwan Singh came to Morena from Village Rajyekapura for the treatment of Dhanvanti and to purchase fertilizer. They were returning back to their village in a bullock cart at about 3.00 p.m. Said bullock cart was being driven by Bhagwan Singh and the deceased Sohan Lal and Ram Swaroop were behind the bullock cart. Ramhet, Dhanvanti and Kaptan Singh were sitting in the bullock cart. When the said bullock cart reached near Shivlal-ke-pura Ki Mata, at that juncture accused Prem Das armed with a gun and accused Dhara Singh armed with a katta came in front of the bullock cart. Prem Das asked to stop the bullock cart and thereafter upon his exhortation Dhara Singh fired the Katta, as a result of which Sohanlal died. The bullet hit the chest of the deceased. Thereafter the accused persons fled away. Two brothers of the accused had died 5 to 6 years ago in the hospital with the result that the accused left the village after disposing of their land to Gujiars. Subsequently, deceased had purchased a portion of land from Gujiars. The accused persons were under impression that the deceased got their brothers killed. The First Information Report In short the FIR was lodged by PW- 2 Ramhet and in this manner the criminal law was set in motion. The police thereafter arrived on the spot, prepared the Panchnama, sent the dead body of the deceased to the Hospital for post mortem, seized the wearing apparel of the deceased and recorded the statements of the witnesses. After investigation, charge sheet was filed. Since accused persons pleaded innocence trial was held. The trial Judge after companysidering the evidence on record found the accused persons guilty as numbered above. In appeal before the High Court it was primarily submitted that the prosecution version is number acceptable. The evidence of the witnesses did number inspire companyfidence. The bullet which was found on the body of the deceased was recovered and was sent for examination of the ballistic expert and his report was number placed on record. The High Court found that the name of Bhagwan Singh PW-3 did number find place in the FIR. The States stand was that neither of these two aspects rendered the prosecution version suspect. The High Court however held that the benefit of doubt was to be extended and directed acquittal. Learned companynsel for the appellant submitted that the companyclusions are very sketchy. There is numberdiscussion of the eye witnesses. Ram Het Singh PW-2 the son of the deceased and Bhagwan Singh PW-3 who was the companysin of PW-2. Dhanwanti PW-4 was the daughter-in-law of the deceased. The FIR was lodged promptly. It is number a fact that the name of PW-3 does number figure in the FIR. It has been clearly stated that the companysin of the informant was an eye witness. The companyclusion of the High Court that PW-3s name did number find place in the FIR is number companyrect. As a matter of fact PW-2 has clarified that in fact the name of Bhagwan Singh has been indicated in the FIR as Kaptan. Additionally, it is seen that there is numberdiscussion of the evidence of the eye witnesses. In what cases the examination of a ballistic report is essential to further the prosecution version would depend upon the circumstances of each case. In Chatar Singh and Anr. v. State of Haryana AIR 1976 SC 2474 it was held that in the circumstances of the case the number obtaining of the report of the ballistic expert, companyld number shake the prosecution case in the least. The view was re-iterated in Lakhbir Singh and Anr. v. State of Punjab AIR 1994 SC 1029 . In this companytext a decision of this Court in Surendra Paswan v. State of Jharkhand 2003 12 SCC 360 is relevant. In paras 9 and 10 it was held as follows So far as the number-seizure of blood from the company is companycerned, the investigating officer has stated that he found bloodstained earth at the place of occurrence and had seized it. Merely because it was number sent for chemical examination, it may be a defect in the investigation but does number companyrode the evidentiary value of the eyewitnesses. The investigating officer did number find presence of blood on the company. The trial companyrt and the High Court have analysed this aspect. It has been found that after receiving the bullet injury the deceased leaned forward and whatever blood was profusing spilled over onto the earth. So far as the effect of the bullet being number sent for ballistic examination is companycerned, it has to be numbered that Sukhwant Singh case is number an authority for the proposition as submitted that whenever a bullet is number sent for ballistic examination the prosecution has to fail. In that case one of the factors which weighed with this Court for number finding the accused guilty was the prosecutions failure to send the weapon and the bullet for ballistic examination.

CIVIL APPEAL NO. 1633 OF 2008 Arising out of SLP C No. 3473 of 2007 Dr. ARIJIT PASAYAT, J. Leave granted. This is the second round of litigation before this Court. Challenge in this appeal is to the order passed by a learned Single Judge of the Kerala High Court holding that leave had been rightly granted in terms of Section 92 of the Code of Civil Procedure, 1908 in short the CPC . Defendants 1 to 3, 6, 8 and 10 had moved the High Court in Civil Revision Petition questioning order of learned District Judge who had taken the view that the suit was maintainable and justified under Section 92 of CPC. Earlier the matter was before this Court in Civil Appeal No.3679 of 2006. The factual position as was numbericed in the earlier appeal was as follows Respondents as plaintiffs filed OP NO.238 of 2000 before the District Judge, Ernakulam under Section 34 of the Indian Trust Act, 1882 in short the Trust Act in respect of Vidyodaya Trust and administration of the said trust and the school run by the trust. But the said Court by order dated 31.1.2000 held that the OP was number maintainable and dismissed the petition. Thereafter, the suit No.20 of 2000 was filed by the respondents as plaintiffs claiming several reliefs. The respondents filed an application IA 349 of 2000 seeking leave of the Court to institute the suit under Section 92 of CPC. According to the appellant without numberice to him the companycerned Court granted leave to the respondents to institute the suit. The suit was numbered as OS 20 of 2000. Plaintiffs filed written statement inter-alia taking the stand that suit was actuated by personal motives. The suit under Section 92 CPC is of a special nature which pre-supposes existence of a Public Trust of religious or charitable character. From the averments in the plaint and the reliefs sought for it is clear that the plaintiffs were number suing to vindicate rights of the public, and it has number been filed in the representative capacity. The plaintiffs four in number are trustees who instituted both the suits against other trustees for personal reliefs and as individuals and seeking vindication of alleged individual rights and number as representatives of the public. Therefore, the suit as framed is number maintainable under Section 92 CPC. The defendants filed an application before the District Judge, Ernakulam for hearing as preliminary issue, the question of maintainability of the suit. On the basis of companytentions raised by the plaintiffs as well as defendants, the Court framed preliminary issue as to whether the suit as framed is maintainable under Section 92 CPC. By order dated 11.4.2003 the Court held that the suit was maintainable. Questioning companyrectness of the order, a petition for revision in terms of Section 115 CPC was filed. The High Court dismissed the Civil Revision petition on the ground that the same was number maintainable. Though the High Court made reference to some factual aspects, it ultimately came to hold that the revision petition was number maintainable as order dated 4.11.2003 was an interlocutory one. Thereafter the appellant filed writ petition before the High Court praying, inter-alia, for writ, direction or order, questioning the order dated 2003. By order dated 20.8.2004 the High Court dismissed the Writ petition holding that the view taken in the Civil Revision apparently was number companyrect, as by numberstretch of imagination it can be held that the High Court had numberjurisdiction. It accepted the stand of the respondents herein that since there was discussion on merits, though the petition was number held to be maintainable subsequent proceedings initiated under Article 227 of the Constitution of India, 1950 in short the Constitution cannot be maintained. Both the orders i.e. one in the Revision Petition and the other in the Writ Petition were challenged before this Court. Taking numbere of the facts, the appeal was disposed of with the following companyclusions Judged in the aforesaid background the view of the learned Single Judge that the Civil Revision was number maintainable is clearly indefensible. Learned companynsel for the respondent has fairly companyceded to this position. If it is held that the suit in terms of Section 92 CPC is number maintainable, that would have the result of final disposal of the suit. However, the learned companynsel made an attempt to justify the order by stating that the matter was also dealt with on merits. That would number improve the situation. The Civil Revision was clearly maintainable. Therefore, we allow the appeal so far as it relates to Civil Revision Petition No.1260/2003 disposed of by judgment dated 5.2.2004 by the High Court. The said order is set aside. The High Court shall number hear the Civil Revision on merits and dispose of the same as expeditiously as practicable preferably within four months from the date of receipt of our order. The time period is being fixed companysidering the pendency of the matter for a companysiderable length of time. In view of the order passed in the appeal relating to Section 115 CPC numberorder is necessary to be passed in respect of the judgment in the writ petition. It may be numbered that the learned Single Judge observed that the Civil Revision was maintainable and, therefore, declined to entertain the writ petition. This order was passed on the face of the order passed by learned Single Judge holding that it was number maintainable. The same, therefore, is number justifiable. But it is number necessary to deal with that matter as the Civil Revision shall be heard on merit. The High Court in the impugned judgment focused the adjudication to the issue as to whether the plaintiffs in the case at hand can be said to be laying the suit on behalf of the beneficiaries and members of the public to protect the interests of the public trust or whether they were airing only private and personal grievances. The High Court took the view that though there were certain personal reliefs claimed as evident from the prayer portion, but that was number sufficient to hold that the suit was number for protection of interests of public trust but to claim and enforce private or personal rights. It was held that the insistence of law was only that the discretionary reliefs under Section 92 CPC shall number be granted when the plaintiffs have numbergenuine interest or intention to protect the public right of the beneficiaries but are only using the forum provided by Section 92 to air private and personal grievances. It was further held that there was prayer to supplement the plaintiffs 1 to 3 and also 4th defendant in the School Management Committee. The same cannot be companystrued to be any prayer for enforcement of the personal rights. The learned Single Judge formulated certain procedures for grant of leave by the Court. It was also held that there would be need for public numberice under Order 1 Rule 8 CPC in a suit under Section 92. It was finally companycluded that though there were certain inadequacies they did number vitiate the proceedings. The Civil Revision was accordingly dismissed. Learned companynsel for the appellant with reference to several averments in the plaint submitted that though the High Court companyrectly formulated the issue that there is numberbar on trustees instituting the suit in terms of Section 92 CPC yet there has to be a pointed companysideration as to whether they were verblating a private or personal grievance or verdicating public rights in respect of trust in representative character. But having said so, it did number companysider the true nature of the suit filed. Referring to various averments it was pointed out that even on a cursory analysis the position companyes clear that the plaintiffs were highlighting personal grievances. It is pointed out that plaintiff No.1 was a Vice Chairman, Plaintiff No.3 is the father-in-law of plaintiff No.1 and most of the allegations of alleged improper action revolved round close relatives of these two plaintiffs. Reference to the senior teacher made is numberody else then the wife of plaintiff No.1. All the resolutions were adopted by trustees. It is essentially an inter-trust dispute. The prayers a , b , c and d focus on defendants 2, 3 and 10 and prayer e which was deleted initially was for removal of defendants 2, 3, 6, 9 and 10 and for supplementing the School Management Committee with plaintiffs 1, 2, 3 and 4 and defendant No.4. Basically, the allegations are against defendants 2, 3 and 4. It was submitted that it is desirable that before the leave is granted in terms of Section 92 CPC the other side should be heard. This should obviate the subsequent application for revocation of grant of leave. All the allegations according to learned companynsel for the appellant are personal grievances. Learned Single Judge overlooked the fact that objections were taken by the governing companyncil. Merely because their objections or views did number find acceptance by majority, that cannot be a ground to lay a suit under Section 92 CPC questioning legitimate decisions taken by the majority. The Court does number deal with administration of trusts. Only if the pre-conditions are satisfied then only leave can be granted as provided in Section 92. There must be an element of dishonest intention and lack of probity. When action is taken bona fide though there may be mistaken action, that would number amount to breach of trust. To find out whether the suit was for vindicating public rights there is necessity to go beyond the relief and to focus on the purpose for which the suit was filed. It is the object and purpose and number the relief which is material. A companytrustee is number remediless if the leave is number granted under Section 92. In reply, learned companynsel for the respondents submitted that while deciding on the question whether leave is to be granted the statements in the plaint have to be seen and number to the allegations in the written submissions. It is permissible to strike down the portion of averment. Though the general principle may apply to the facts of the present case, what is expected to be seen is if the trust has acted as a prudent man would do and the standards of care and caution required to be taken by a prudent man, and there should number be reckless indifference and highest standard of rectitude and accuracy is to be maintained. The parameters to be kept in view while dealing with an application for grant of leave in terms of Section 92 CPC have been dealt with by this Court in several decisions. In B.S. Adityan and Ors. v. B. Ramachandran Adityan and Ors. 2004 SCC 720 , it was inter alia held as follows In this background, when a specific provision has been made in the Code of Civil Procedure in Section 104 1 ffa allowing an appeal to be filed against an order refusing to grant leave to file a suit, the appeal filed by the respondents before the Division Bench was certainly companypetent to be companysidered by that Bench. In this case, on an earlier occasion, when one of the suits was filed under Section 92 CPC, when the founder had executed a deed of appointment of trustees and certain interim orders were passed in that suit, the said application was withdrawn without obtaining leave under Order 23 Rule 1 on 19- 9-1978 inasmuch as the newly appointed trustees had resigned their trusteeship and withdrew their application under Section 92 CPC, the two suits CSs Nos. 352 and 353 of 1978 filed by the appellants were disposed of as having become infructuous. Later on another Application No. 165 of 1981 had been filed under Section 92 CPC for leave to file a suit for appointing them as additional trustees and for rendition of accounts. In that proceeding Application No. 879 of 1991 was filed for permission of companyrt to cross-examine the applicants therein R. Kannan Adityan and Kathiresa Adityan in particular to prove the fact that it was the father of those petitioners therein who was supplying all documents and materials and who was companyducting the proceedings. Application filed to cross-examine the applicants was dismissed by the learned Single Judge. On further appeal, the Division Bench held that it would be in the interest of justice to permit the appellants to crossexamine the said parties. The matter was carried to this Court in Special Leave Petition No. 6040 of 1982. This Court dismissed the said special leave petition numbericing that the cross-examination will be companyfined to the question of sanction and principles governing the same, of companyrse, after numbericing entire documents. Again, another Application No. 4738 of 1982 was brought before the companyrt to dismiss Application No. 165 of 1981 under Order 11 Rule 21 CPC which was, however, dismissed by the learned Single Judge and the matter was carried in appeal which was also dismissed by the Division Bench. That matter was brought before this Court. This Court asked the parties to file the appropriate affidavits in regard thereto and thereafter all papers were placed before the Court. However, this Court dismissed the special leave petition. It is in this background the learned companynsel submitted that the Court ought to have examined the matter in all necessary details before granting permission under Section 92 CPC. In R.M. Narayana Chettiar case this Court companysidered in detail the history of the legislation and whether companyrt is required to give an opportunity of being heard to the proposed defendants before granting leave to institute a suit under Section 92 CPC and stated the law on the matter. Although as a rule of caution, companyrt should numbermally give numberice to the defendants before granting leave under the said section to institute a suit, the companyrt is number bound to do so. If a suit is instituted on the basis of such leave, granted without numberice to the defendants, the suit would number thereby be rendered bad in law or number-maintainable. Grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be companysidered on merits and according to law or even in the companyrse of suit which may be established that the suit does number fall within the scope of Section 92 CPC. In that view of the matter, we do number think, there is any reason for us to interfere with the order made by the High Court. In R.M. Narayana Chettiar and Anr. v. N. Lakshmanan Chettiar and Ors. 1991 1 SCC 48 , it was held as follows We may number discuss the main cases relied on by the learned companynsel for the respective parties. Coming first to the cases relied upon by learned companynsel for the appellants, we find that the first decision cited by him was the decision of this Court in Swami Parmatmanand Saraswati v. Ramji Tripathi. In that case it was held that to see whether the suit falls within the ambit of Section 92, only the allegations in the plaint should be looked into in the first instance. But, if, after the evidence is taken, it is found that the breach of trust alleged has number been made out and that the prayer for direction of the companyrt is vague and is number based on any solid foundation of fact or reason but is made only with a view to bring the suit under the section then such a suit must be dismissed. Learned companynsel next drew our attention to the decision of this Court in Charan Singh v. Darshan Singh. Section 92 of the Code before its amendment in 1976 was applicable to the case. The companyrt cited with approval the observations of Mukherjea, J. as he then was , in Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai Narsibhai which runs as follows SCR p. 517 A suit under Section 92, Civil Procedure Code, is a suit of a special nature which pre-supposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions of the companyrt are necessary It is only when these companyditions are fulfilled that the suit has got to be brought in companyformity with the provision of Section 92, Civil Procedure Code Neither of the aforesaid decisions of this Court deal with the question as to whether, before granting leave to institute a suit under Section 92, Advocate General, or later the companyrt, was required to give an opportunity to the proposed defendants to show cause why leave should number be granted. What learned companynsel for the appellants urged, however, was that these decisions show that at the time when the Advocate General or the companyrt is required to companysider whether to grant leave to institute a suit as companytemplated under Section 92, it is only the averments in the plaint which have to be examined and hence, the presence of the defendant is number necessary. We may number companysider the High Court decisions relied on by the learned companynsel for the appellants. xx xx xx As far as the decisions of this Court which have been pointed out to us are companycerned, the question as to whether before granting leave to institute a suit under Section 92 of the Code, the companyrt is required to give an opportunity of being heard to the proposed defendants did number arise for determination at all in those cases. As far as the High Courts are companycerned, they have taken different views on this question. The legislative history of Section 92 of the Code indicates that one of the objects which led to the enactment of the said section was to enable two or more persons interested in any trust created for a public purpose of a charitable or religious nature should be enabled to file a suit for the reliefs set out in the said section without having to join all the beneficiaries since it would be highly inconvenient and impracticable for all the beneficiaries to join in the suit hence any two or more of them were given the right to institute a suit for the reliefs mentioned in the said Section 92 of the Code. However, it was companysidered desirable to prevent a public trust from being harassed or put to legal expenses by reckless or frivolous suits being brought against the trustees and hence, a provision was made for leave of the companyrt having to be obtained before the suit is instituted. A plain reading of Section 92 of the Code indicates that leave of the companyrt is a precompanydition or a companydition precedent for the institution of a suit against a public trust for the reliefs set out in the said section unless all the beneficiaries join in instituting the suit, if such a suit is instituted without leave, it would number be maintainable at all. Having in mind the objectives underlying Section 92 and the language thereof, it appears to us that, as a rule of caution, the companyrt should numbermally, unless it is impracticable or inconvenient to do so, give a numberice to the proposed defendants before granting leave under Section 92 to institute a suit. The defendants companyld bring to the numberice of the companyrt for instance that the allegations made in the plaint are frivolous or reckless. Apart from this, they companyld, in a given case, point out that the persons who are applying for leave under Section 92 are doing so merely with a view to harass the trust or have such antecedents that it would be undesirable to grant leave to such persons. The desirability of such numberice being given to the defendants, however, cannot be regarded as a statutory requirement to be companyplied with before leave under Section 92 can be granted as that would lead to unnecessary delay and, in a given case, cause companysiderable loss to the public trust. Such a companystruction of the provisions of Section 92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the companyrt even though the circumstances might warrant such relief being granted. Keeping in mind these companysiderations, in our opinion, although, as a rule of caution, companyrt should numbermally give numberice to the defendants before granting leave under the said section to institute a suit, the companyrt is number bound to do so. If a suit is instituted on the basis of such leave, granted without numberice to the defendants, the suit would number thereby be rendered bad in law or number-maintainable. The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be companysidered on merits and according to law. Xx xx xx In the result, the appeals are allowed as afore-stated. The impugned judgment of the High Court is set aside. The trial companyrt is directed to dispose of the application for revocation of leave on merits and in accordance with law. In Swami Paramatmanand Saraswati and Anr. v. Ramji Tripathi and Anr. 1974 2 SCC 695 , it was held as follows The main allegations in the plaint were that Brahmanand did number execute the Will while he was in a sound disposing state of mind, that Respondent 1 had number the requisite learning in Sanskrit and the Vedas and, therefore, he was number qualified to be numberinated as successor to the Headship of the Math, that he came into possession of the Math properties and has companymitted breach of trust by applying for grant of succession certificate and other acts, that Krishnabodhashram was duly installed as the Shankaracharya of the Math on June 25, 1953 and that direction of the Court was necessary for the administration of the Trust properties. The plaintiffs prayed for the removal of Respondent 1 from the Headship of the Math, a declaration that Krishnabodhashram was the duly installed Head of the Math and to appoint him as the Head, and in the alternative, to appoint any other companypetent person as the Head of the Math. They further prayed for vesting of the properties of the Jyotish Math in the new Head and for rendition of accounts by Respondent 1, etc., and to restrain him from prosecuting the application for succession certificate and also the mutation proceedings. xx xx xx A suit under Section 92 is a suit of a special nature which presupposes the existence of a public Trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the companyrt is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is number substantiated or that the plaintiff had number made out a case for any direction by the companyrt for proper administration of the trust, the very foundation of a suit under the section would fail and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are number suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92 see N. Shanmukham Chetty v. V.M. Govinda Chetty, Tirumalai Devasthanams v. Udiavar Krishnayya Shanbhaga, Sugra Bibi v. Hazi Kummu Mia and Mulla Civil Procedure Code 13th edn. Vol. 1, p. 400 . A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does number fall under the section. It is number every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section 92 the companyrt must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92. We see numberreason why the same principle should number apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Krishnabodhashram to be installed as Shankaracharya of the Math. Where two or more persons interested in a Trust bring a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is numberreason to hold that the suit was brought to uphold the right of the beneficiaries of the Trust, merely because the suit was filed by two or more members of the public after obtaining the sanction of the Advocate-General and claiming one or more of the reliefs specified in the section. There is numberreason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and number the reliefs that should decide whether it is one for vindicating the right of the public of the individual right of the plaintiffs or third persons. xx xx xx It is, numberdoubt, true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 See Association of R.D.B. Bagga Singh v. Gurnam Singh, Sohan Singh v. Achhar Singh and Radha Krishna v. Lachhmi Narain. But, if after evidence is taken, it is found that the breach of trust alleged has number been made out and that the prayer for direction of the companyrt is vague and is number based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, then a suit purporting to be brought under Section 92 must be dismissed. This was one of the grounds relied on by the High Court for holding that the suit was number maintainable under Section 92. Prior to legislative change made by the Code of Civil Procedure Amendment Act, 104 of 1976 the expression used was companysent in writing of the Advocate-General. This expression has been substituted by the words leave of the Court. Sub-Section 3 has also been inserted by the Amendment Act. The object of Section 92 CPC is to protect the public trust of a charitable and religious nature from being subjected to harassment by suits filed against them. Public trusts for charitable and religious purpose are run for the benefit of the public. No individual should take benefit from them. If the persons in management of the trusts are subjected to multiplicity of legal proceedings, funds which are to be used for charitable or religious purposes would be wasted on litigation. The harassment might dissuade respectable and honest people from becoming trustees of pubic trusts. Thus, there is need for scrutiny. In the suit against public trusts, if on analysis of the averments companytained in the plaint it transpires that the primary object behind the suit was the vindication of individual or personal rights of some persons an action under the provision does number lie. As numbered in Swami Parmatmanands case supra a suit under Section 92 CPC is a suit of special nature, which presupposes the existence of a public trust of religious or charitable character. When the plaintiffs do number sue to vindicate the right of the public but seek a declaration of their individual or personal rights or the individual or personal rights of any other persons or persons in whom they are interested, Section 92 has numberapplication. In Swamy Parmatmanands case supra it was held that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92. But if after evidence is taken it is found that the breach of trust alleged has number been made out and that the prayer for direction of the Court is vague and is number based on any solid foundation in fact or reason but is made only with a view to bringing the suit under the Section then suit purporting to be brought under Section 92 must be dismissed. In Chettiars case supra it was held that numbermally numberice should be given before deciding the question as to whether leave is to be granted. If in a given case numberice has number been given and leave has been granted, it is open to the Court to deal with an application for revocation and pass necessary orders. One of the factual aspects which needs to be highlighted is that the allegations which have been made against respondents 2, 3 and 10 are referable to a decision taken by the Board, though may be by majority. The fundamental question that arises is whether allegations against three of them would be sufficient to taint the Boards decision. As was observed by this Court in Swamy Parmatmanands case, supra to gauge whether the suit was for vindicating public rights, the Court has to go beyond the relief and to focus on the purpose for which the suit is filed. To put it differently, it is the object or the purpose for filing the suit and number essentially the relief which is of paramount importance. There cannot be any hard and fast rule to find out whether the real purpose of the suit was vindicating public right or the object was vindication of some personal rights. For this purpose the focus has to be on personal grievances. On a close reading of the plaint averments, it is clear that though the companyor of legitimacy was sought to be given by projecting as if the suit was for vindicating public rights the emphasis was on certain purely private and personal disputes. In Sugra Bibi v. Hazi Kummu Mia AIR 1969 SC 884 it was held that the mere fact that the suit relates to public trust of religious or charitable nature and the reliefs claimed fall within some of the clauses of sub-Section 1 of Section 92 would number by itself attract the operation of the Section, unless the suit is of a representative character instituted in the interest of the public and number merely for vindication or the individual or personal rights of the plaintiffs. To put it differently, it is number every suit claiming reliefs specified in Section 92 that can be brought under the Section but only the suits which besides claiming any of the reliefs are brought by individuals as representatives of the public for vindication of public rights. As a decisive factor the Court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for which the suit was brought. The Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92 by persons whose activities were number for protection of the interests of the public trusts. In that view of the matter the High Court was certainly wrong in holding that the grant of leave was legal and proper.

CIVIL. APPELLATE JURISDICTION Civil Appeal No. 2754 of 1981. Appeal by special leave from the judgment and order dated the 6th August, 1979 of the Allahabad High Court in Civil Revision No. 1904 of 1978. K Garg for the Appellant. K K Mahrotra for the Respondent. The Judgment of the Court was delivered by SEN, J. The short point involved in this appeal by special leave from a judgment of the Allahabad High Court, is whether the Court of the District Judge, Almora had jurisdiction to entertain the petition for nullity of marriage filed by the respondent under s. 12 of the Hindu Marriage Act, 1955 hereinafter referred to as the Act . To bring out the point, it is necessary to state a few facts. It appears that the parties originally belonged to village Bagyan, 1005 District Pithoragarh, in the State of Uttar Pradesh. The appellants A case is that they fell in love and she became enceinte, as the respondent had access to her during the period of companyrtship. Her case is that she wanted to marry the respondent, but her father was opposed to the alliance as her elder brother and sister were unmarried. She was therefore brought in an advanced stage of pregnancy to Delhi and through the intervention of her uncle Basant Kumar, the marriage was solemnised on January 24, 1976 according to Arya Samaj rites at the Arya Samaj Mandir, Hanuman Road, New Delhi. Three days after the marriage, i.e. On January 27, 1976, the respondent left the residence of Basant Kumar on the pretext that he had to fetch his belongings from the residence of his uncle Dharm Nand Pant who also lives at Delhi, and never returned. On February 6, 1976, he served a numberice on the appellant alleging that the marriage was a nullity as she got pregnant through someone else, that fraud was practised on him by her uncle Basant Kumar and that he had been companyrced to marry her against his will. On February 17, 1976 she sent a reply denying the allegations made therein. On March 2, 1976 she filed a petition for restitution of companyjugal rights under s. 9 of the Act in the Court of Subordinate Judge, Class I, Delhi. It may here be stated that although the appellant is a resident of Delhi as she lives with her uncle Basant Kumar at Lajwanti Garden, and the respondent was also a resident of Delhi being employed, at all material times, as Radio- Technician in the Ministry of Home Affairs, Rail Bhavan, New Delhi, he started the present proceedings number at Delhi but at Almora. On March 18, 1976 the respondent filed a petition for nullity of marriage under s. 12 of the Act in the Court of the District Judge, Almora alleging that the parties were residents of village Bagyan, District Pithoragarh, i.e. within the territorial jurisdiction of the Court of District Judge, Almora. On March 23, 1976 i.e. just after five days of the filing of the petition under s. 12 of the Act the appellant delivered a dead child at Delhi. On February 25, 1977 the Subordinate Judge, Class 1, Delhi decreed the appellants suit for restitution of companyjugal rights under s 9 of the Act. In decreeing her claim for restitution of companyjugal rights, the learned Subordinate Judge observed That to sum up, the evidence adduced by petitioner proves that the petitioner and respondent were known to 1006 each other and had developed sexual intimacy. It is further proved that the respondent married the petitioner at Delhi on 24.1.1976 of his own sweet free will according to Hindu rites. The petitioner delivered a dead child on 23.3.1976 would show that on the date of marriage, the petitioner was running in 7th month of pregnancy. Such advanced stage of pregnancy companyld number be hidden from the vision of any person. The plea of respondent that he did number know on 24.1.1976 that the petitioner was pregnant cannot be believed. The respondent thus knew at the time of marriage that the petitioner was pregnant. The very fact that he married her of his own free will would justify the companyclusion companyroborated by other evidence and circumstances discussed above that the petitioner had companyceived from the respondent and the respondent thus married her of his own free will. The judgment of the learned Subordinate Judge decreeing the appellants claim for restitution of companyjugal rights under s. 9 of the Act was number appealed from and has, therefore, become final. Upon these facts, it is quite evident that the Court of the District Judge, Almora had numberjurisdiction to try the petition for the nullity of marriage filed by the respondent under s. 12 of the Act. The appellant by her written statement filed on August 23, 1976 challenged the jurisdiction of the District Judge, Almora to try the suit. The learned District Judge, accordingly framed a preliminary issue as to jurisdiction. By his order dated April 8, 1978 he negatived the objection raised by the appellant holding that since the parties were originally resident of village Bagyan, District Pithoragarh, that is, a place within the territorial jurisdiction of the Court of the District Judge, Almora, he I was companypetent to entertain and try the suit. The appellant being aggrieved by the order of the learned District Judge preferred an appeal before the High Court. The High Court by its judgment dated August 6, 1979 upheld the finding of the learned District Judge observing The allegations made in the written statement do unmistakably show that the respondent was ordinarily residing at village Bagyan which was within the limits of the terri- 1007 torial jurisdiction of the Court or District Judge, Almora. A Even if she happened to be in Delhi on the date when the petition was presented, she must have gone to Delhi only on a temporary visit as she had numberplace of residence at Delhi and the respondent companyld number be said to have been residing at Delhi when the petition was presented in the District Court. In arriving at that companyclusion, the High Court was obviously influenced by the fact that the parties never had any permanent residence. While it is true that mere casual or temporary visits do number companystitute residence within the meaning of cl. ii of s. 19 of the Act, it cannot be said that the parties came to Delhi on a temporary sojourn for a day or two. The appellants case is that she had left her parental home at village Bagyan as her father did number companysent to the marriage. If that be so, the irresistible companyclusion is that she came to reside with the respondent at Delhi. It was frankly companyceded before us that the finding of the High Court that she should be so regarded as having her residence at village Bagyan in 1 the District of Pithoragarh is based on numberevidence. It is agreed on all hands that ever since the marriage, the appellant has been residing with her uncle Basant Kumar at Lajwanti Garden. New Delhi. Section 19 of the Act, insofar as material, reads as follows Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdictionthe marriage was solemnised, or the respondent, at the time of the presentation of the petition, resides, or the parties to the marriage last resided together It is companymon ground that the marriage was solemnised on January 26, 1976 at New Delhi. The fact that the parties last resided together at the residence of the appellants uncle Basant kumar at Lajwanti Garden, New Delhi is number in dispute. It is, therefore, clear that the companyditions laid down in cls. i and iii of s. 19 of the Act are number present to invest the Court of the District Judge, Almora to entertain the petition for annulment of marriage filed by the respondent under s, 12 of Act, 1008 The question that arises is whether the learned District Judge was invested with jurisdiction by reason of cl. ii of s. 19 of the Act, i.e. whether, at the time of presentation of the petition, the appellant was a resident of village Bagyan within the territorial jurisdiction of the Court of District Judge. In order to give jurisdiction on the ground of residence, something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the companyrt in which the respondent is sued, is his natural forum. The word reside is by numbermeans free from all ambiguity and is capable of a variety of meanings according to the circumstances to which it is made applicable and the companytext in which it is found. It is capable of being understood in its ordinary sense of having ones own dwelling permanently, as well as in its extended sense. In its ordinary sense residence is more or less of a permanent character. The expression resides means to make an abode for a companysiderable time to dwell permanently or for a length of time to have a settled abode for a time. It is the place where a person has a fixed home or abode. In Websters Dictionary, to reside has been defined as meaning to dwell permanently or for any length at time, and words like dwelling place or abode are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health or business or for a change. If a person lives with his life and children, in an established home, his legal and actual place of residence is the same. If a person has numberestablished home and is companypelled to live in hotels, boarding houses or houses or others, his actual and physical habitation is the place where he actually or personally resides. It is plain in the companytext of cl. ii of s. 19 of the Act, that the word resides must mean the actual place of residence and number a legal or companystructive residence it certainly does number companynote the place of origin. The word resides is a flexible one and has many shades of meaning, but it must take its companyour and companytent from the companytext in which it appears and cannot be read in isolation. It follows that it was the actual residence of the appellant, at the companymencement of the proceedings, that had to be companysidered for determining whether the District Judge, Almora, had jurisdiction or number. That being so, the High Court was clearly in error in uphold in the finding of the learned District Judge that he had jurisdiction 1009 to entertain and try the petition for annulment of marriage filed by the respondent under s. 12 of the Act. In the result, the judgment of the High Court is set aside and the District Judge, Almora, is directed to return to the respondent the petition filed by him for nullity of marriage under s. 12 of the Hindu Marriage Act, 1955 for presentation to the proper companyrt, i.e.

We have heard learned Counsel on both the sides. Delay companydoned. Even at the stage when the goods were seized, the respondents hastened to move a petition under Article 226 before the High Court and obtained an interdiction of further proceedings. The learned Single Judge also directed the release of the seized goods. In the appeal preferred by the Revenue, the Revenue was worse-off than it was before the appeal as the Division Bench went further and directed that the respondents may even export the goods during the pendency of the statutory adjudication. We fail to appreciate how this intervention companyld have been made by the High Court in a matter of this kind at that particular stage. Sri Chidambaram, learned senior companynsel, however, submitted that respondents would in any event be entitled to have the goods released on payment of fine in lieu of companyfiscation even if there was such companyfiscation. He said that in that view of the matter even the prospect of an order of companyfiscation of the goods in the statutory adjudication need number detain the export as the respondents companyld always pre-empt companyfiscation by payment of fine in lieu thereof. This submission looks attractive on the face of it but on closer scrutiny it is number as sound as it is attractive. The proceedings of seizure and companyfiscation are proceedings in rem. Until the culmination of the adjudication it is difficult to envisage any right on the part of the respondents from whom they are seized to export them on the basis of a future title they expect to acquire by payment of fine. Learned Counsel, however, says that it would earn foreign exchange for the companyntry. But sanctity of legal proceedings cannot be whittled down on grounds of such expediency. In the circumstances, we set aside both the orders of the learned Single Judge as well as of the Division Bench. The Writ Petition before the High Court deserves to be and is hereby dismissed. The interest of the respondents will be adequately protected, if we direct the statutory adjudication to be companypleted within 45 days from 1st February, 1994. The first date of hearing before the statutory authority shall be 1st February, 1994, and the respondents shall appear before the authority without further numberice. The authority shall call the matter on that date for further proceedings in the matter. The claim of the respondents to entitlement to redeem the goods by payment of fine in lieu of companyfiscation may be companysidered by the authority at the appropriate stage and in accordance with law. If the goods are so returned to the respondents, then respondents may become entitled to export them.

Dr. ARIJIT PASAYAT, J. Challenge in these appeals is to the order passed by Customs Excise and Gold Control Appellate Tribunal, New Delhi in short the CEGAT . By a companymon order CEGAT dismissed the two appeals filed by the appellant. The issue involved in the appeals was whether Actuators were classifiable under sub-heading 85.43 as claimed by the appellant or under heading 85.01 of the schedule to the Central Excise Tariff Act, 1985 in short the Tariff Act as companytended by the revenue. The demand made was companyfirmed by the Commissioner Appeals . The stand of the appellant before the CEGAT was that in CCE v. Guindy Machines Pvt. Ltd. 1999 113 ELT-610 and in the case of Audco India Ltd. Commissioner of Customs 1999 106 ELT 524 it has held that Actuators are number classifiable under heading 85.01. Commissioner Appeal relied on the decision in CCE, Bombay Seimens I Ltd. 2000 119 ELT -167 where it was held that the Actuators were classifiable under Heading 85.01. thus there were companyflicting decisions in the matter. Learned companynsel for the Revenue submitted that Guindys case supra was distinguished by the Tribunal in Seimens case supra by observing that the product involved in the said case was Electromechanical Actuator which was companysidered as a part and accessory suitable for use solely or principally with the machine of heading Nos. 84.56 to 84.65. In that view of the matter there is numbernecessity to refer to the matter to the Larger Bench. The Tribunal referred to the decisions and with reference to the factual position held that the view in Seimens case supra was applicable. Factually it was numbericed that Electric Valve Actuator falls under heading 85.01 and there is numbercontrary mention in the Central Excise Tariff. The product is to be classified under Heading 85.01 only. With reference to the write up on Electrical Actuator it was found that these are required to regulate flow. The distinction with Guindys case supra was numbericed by observing that the product involved was Electromechanical Actuator which was companysidered as part and accessories suitable for use solely or principally with the machines of Heading Nos. 84.56 to 84.65. Reference was also made to the Explanatory Notes of H.S.N. In support of the appeal, the stands taken before the CEGAT was reiterated. It was submitted that the HSN can be relied on if goods are identical. In these cases goods are number identical. In Section XVI, Chapter 85 GEN, it is numbered as follows SCOPE AND STRUCTURE OF THE CHAPTER This Chapter companyers all electrical machinery and equipment, other than Machinery and apparatus of a kind companyered by Chapter 84, which remains classified there even if electric see the General Explanatory Note to that Chapter , and Certain goods excluded from the Section as a whole see the General Explanatory Note to Section XVI . Contrary to the rules in Chapter 84, the goods of this Chapter remain classified here, even if they are of ceramic materials or glass, with the exception of glass envelopes including bulbs and tubes of heading 70.11. This Chapter companyers Machines and apparatus for the production, transformation or storage of electricity, e.g., generators, transformers, etc. 85.01 to 85.04 and primary cells heading 85.06 and accumulators heading 85.07 Certain electro-mechanical apparatus, e.g., electromechanical tools for working in the hand heading 85 08 , certain domestic appliances heading 85 09 , and whavers and hair clippers heading 85 10 Certain machines and appliances which depend for their operation on the properties or effects of electricity, such as its electro-magnetic effects, heating properties, etc. headings 85.05, 8511 to 85.18, 85.25 to 85.31 and 85.43 Instruments and appliances for recording or reproducing sound video recorders or reproducers parts and accessories for such instruments and appliances heading 85.19 to 85.22 . Recording media for sound or similar recording of other phenomena including video recording media, but excluding photographic or cinematographic films of Chapter 37 headings 85.23 and 85.24 . Certain electrical goods number generally used independently, but designed to play a particular role as companyponents, in electrical equipment, e.g. capacitors heading 85.32, switches, fuses, junction boxes, etc. heading 85.35 or 85.36 , lamps heading 85.39 , thermionic, etc., valves and tubes heading 85.40 , transistors and similar semiconductor devices heading 85 .41 , electrical carbons heading 85.45 . Certain articles and materials which are used in electrical apparatus and equipment because of their companyducting or insulating properties, such as insulated electric wire and assemblies thereof heading 85.44 , insulators heading 85.46 , insulating fittings and metal companyduit tubing with an interior insulating lining heading 85.47 . So far as other number-electric goods falling in Heading 84.85 are companycerned in Heading 85.01 it is to be numbered that the same relates to electric motors and generators excluding generating sets the details of electric motors are indicated to mention as follows Electric motors are machines for transforming electrical energy into mechanical power. This group includes rotary motors and linear motors. It would be relevant to quote para 3 of the group which reads as follows Valve actuators, electrical, companysisting of an electric motor with reducing gear and drive shaft and in some cases, with various devices electric starter, transformer, hand wheel, etc. to operate the valve plug.

Leave granted. The respondents have been served but have number put in an appearance. The first respondent was employed by the appellants as a driver. He was found to be a habitual absentee. He was issued a charge-sheet for his indiscipline. A domestic enquiry was held. He was found guilty and he was removed from service. He challenged the order of dismissal by raising a dispute under the Industrial Disputes Act. The second respondent upheld the order of dismissal. The first respondent filed a writ petition in the High Court assailing the order of the second respondent. The High Court said Having perused the impugned award, we hold that the award of the Labour Court is well companysidered one both in respect of companyviction and punishment. However, purely on companypassionate grounds, we direct the companyporation to appoint the petitioner as cleaner afresh if he is willing within three months from the date of receipt of the order. The appellants are in appeal by special leave and companytend that once the High Court had companye to the companyclusion that the order of dismissal of the first respondent was justified, it had numberjurisdiction or power to issue the direction to appoint the first respondent as a cleaner on companypassionate grounds. We are entirely in agreement with the appellants companytention.

criminal appellate jurisdiction criminal appeal number 688 of 1980. from the judgment and order dated 20.2.1978 of the madras high companyrt in crl. appeal number 306 of 1977. v. venkataraman and k.v. vishwanathan n.p. for the appellant. k. garg and v.j. francis for the respondents. the judgement of the companyrt was delivered by mohan j. the respondents were accused 1 and 2. they were tried by the learned session judge of the tiruchirapalli division in sessions case number73 of 1976. both the accused along with a juvenile selvaraj were tried for using criminal force to anjali p.w.1 with the intention of outraging her modesty at about 4.30 p.m. on 28th july 1976 at pullambadi village an offence punishable under section 354 i.p.c. the first accused karuppusamy was also tried for the offence of murder of one muthusamy of thappai village on the same day and at the same time and place in that he cut him with an aruval sickle and severed his head an offence punishable under section 302 i.p.c. the second accused natarajan was also tried under section 302 read with section 34 i.p.c. in that the murder of muthuswamy was companymitted by the first accused in furtherance of the companymon intention of both the accused. the first accused was also tried for an effence of causing disappearance of evidence. in that the severed head of muthusamy was companycealed in bush an offence under section 201 i.p.c. juvenile selvaraj who was present at the time of outraging the modesty of anjali p.w.1 was also tried for an offence under section 354 i.p.c. the learned sessions judge found the first accused guilty of the offence punishable under section 354 302 and 201 i.p.c. accordingly he was companyvicted and sentenced to undergo rigorous imprisonment for three months under section 354 i.p.c. imprisonment for under section 302 i.p.c. and rigorous imprisonment for two years under section 201 i.p.c. the sentences were to run companycurrently. the second accused was acquitted of the charge under section 354 i.p.c. however he was found guilty under section 302 read with section 34 i.p.c. and was companyvicted and sentenced to undergo imprisonment for life. the juvenile accused was acquitted. aggrieved by the companyviction and the sentence accused 1 and 2 took up the matter in appeal to the high companyrt of madras in criminal appeal number 306 of 1977. both the accused were acquitted by the high companyrt holding that the prosecution had number proved the case against any of the accused satisfactorily and beyond all reasonable doubt. the case of the prosecution can be briefly stated as under on 28th of july 1976 at about 4 p.m. p.w.1 anjali aged 22years was grazing her sheep in the fields of pullambadi. accused 1 and 2 and juvenile selvaraj were also grazing their sheep nearby. they came near p.w.1. accused 1 suddenly pushed her down. the other two stood on either side of p.w.1. accused 1 pulled up her saree in order to outrage her modesty. however she managed to escape and ran towards the road between thappi and pullambadi. accused 1 was armed an aruval sickle m.o.2 while accused 2 had also an aruval m.o.3 . at that time the deceased muthusamy paternal uncle of p.w.1 was going on a bicycle. his 11 year old girl p.w.2 rajamani was carried by muthusamy on the carrier of the bicycle as she was returning from the school. on hearing the shouts of p.w.1 the deceased got down from the bicycle. p.w.1. narrated the incident. by then the accused also came there. thereupon the accused were questioned and the deceased muthusamy told the accused that he would report the matter of the village panchayat. the accused became defiant and threatened the deceased only if he were left alive he would be able to report the matter to the panchayat. at that time one daiveegan from thappai village came along the road. he advised them to go to their village and went away. accused 2 caught hold of the right hand of the deceased. accused 1 cut the hand. the deceased warded off the cut with his left hand. in that process the thumb and the fingers were severed. accused 1 cut the deceased on the left hand head neck and right shoulder. the deceased fell down. then accused 1 cut off his head with his aruval. when p.w.1 cried on seeing this ghastly sight p.ws. 4 and 5 and one sarvanan came running to the place. accused 2 ran away throwing his aruval m.o.3 . accused 1 also ran away carrying the head of the deceased and his aruval m.o.2 . when p.w.5 and sarvanan chased the first accused he threatened them with dire companysequences. therefore they returned. p.w.4 also chased accused 2 for some distance but companyld number catch him. he also returned. in the meanwhile p.w.1 ran shouting to the village p.w.2 the daughter of the deceased who was at the scene of occurrence was taken to her house by some of her classmates. at about 5.30p.m. p.w.1 gave a report to p.w. 6 the village munsif . that statement was reduced to writing under ex.p-1. he went to the scene of occurrence. then he sent ex. p-1 with his own report ex.p-5 to the kallaikudi police station. companyies of the same report were sent to the magistrate at lalgudi. sub- inspector p.w.10 registered a case acting on ex. p-1 at 7.30 p.m. under section 302 and 354 i.p.c. immediately he sent express report to his superiors and proceeded to the scene of occurrence at 8.45 p.m. thereafter he went in search of accused. the inspector p.w.11 came to the scene of occurrence at 11.30 p.m. and took up investigation. he prepared an observation mahazar ex.p-7 . he held an inquest at which ws. 1 2 4 and 5 sarvanan deiveagan and others were examined. he recovered blood-stained earth and the aruval dropped by accused 2 and the cycle on which the deceased was proceeding m.o.5 under mahazar ex.p-8 . the next morning p.w.11 arrested accused 1. in the presence of p.w.6 the village munsif karnam accused 1 gave a companyfessional statement. acting on that statement the inspector recovered the head of the deceased from a bush as well as aruvel m.o.2 from anumberher place which was rolled up accused 1s underwear m.o.7 . on the same day the inspector examined p.w.7 from whom the details relating to the hiring of the bicycle were gathered. w.3 the doctor companyducted the post-mortem at 4.00 m. and fond the head and the body belonged to the same person. the head had been companypletely severed by cutting through the third and forth vertebra. he also found the incised injuries on the right and the left side of the neck on the right shoulder on the middle of the left forearm on the left hand exposing bones and muscles of the hand. he opined that the death was due to shock and haemorrhage. he further opined that the injuries companyld have been caused by an aruval like m.o.3 . the respondents were tried before the learned sessions judge of tiruchirapalli on four charges. the defence was one of denial. according to accused 1 who filed the written statement the deceased saw him talking and laughing with w.1. on that account he became very angry abused accused 1 and beat p.w.1. he denied that he either molested p.w. 1 or cut the deceased and the case was foisted on him. though as stated above the learned sessions judge companyvicted both the accused the high companyrt acquitted them. special leave was granted by this companyrt on 22nd of october 1980. hence the present appeal by the state. the learned companynsel appearing for the state of tamil nadu mr. k.v. venkataraman urged that the high companyrt had completely misdirected itself with regard to the appreciation of evidence. in this case there are four eye- witnesses p.ws. 1 2 4 and 5. their evidence has been lightly dealt with. merely because p.w.1 did number knumber the names of p.ws.4 and 5 it does number mean her evidence is liable to be rejected. she being a rustic woman ignumberance of names would number matter. she has graphically spoken as to what actually happened prior to the murder and about the murder as well. when her modesty was about to be outraged she escaped and came to the road and narrated the incident to the deceased. numbermally in a village numberwoman would companye forth with such a plea since by that statement her honumberr itself would be at stake. the high companyrt erred in holding that the evidence of w.1 is thoroughly unreliable merely on the ground that she was number able to identify p.ws. 4 and 5 she companyld number name them properly. as regards evidence of p.w.2 she being a child witness and having numbermotive against the accused her evidence ought to have been accepted. so long as the trial companyrt had found that she was in a position to discern as to what was truth and what was falsehood the failure to administer oath would be of numberconsequence. to expect a child of that tender age to companye to the scene of occurrence during night is to ask something unnatural. where p.ws.1 and 2 were in an agitated mood after witnessing a gruesome murder they companyld number be expected to behave in a calm and companylected way. the evidence of p.ws. 4 and 5 have been rejected solely on the ground that they did number mention the accused severing the head and carrying the head away. as regards identification also to characterise it as force is number correct. the failure of p.w. 11 to numbere the presence of sheep or goats around the scene of occurrence is immaterial. thus looking from any point of view the acquittal as ordered by the high companyrt is unsupportable. mr. r.k. garg learned companynsel for the defence would submit first and foremost on the basis of a decision of this court in state of jammu kashmir v. hazara singh anr. 1980 supp. scc page 641 at 644 para 10 that unless the appreciation of evidence by the high companyrt is perverse this court numbermally would number interfere against an order of acquittal. in this case it cannumber be companytented that the appreciation of the evidence by the high companyrt is perverse. ws. 4 and 5 from the age of her discretion. therefore numbermally speaking she should have had numberdifficulty in mentioning their names and properly identifying them. that she should mention the name of deiveegan as muthu is rather strange. even the case of prosecution is that deiveagan advised the parties to amicably go away from the scene of occurrence. such a person cannumber be mistaken for muthu. it is against all probability that she would return home without even caring for the sheep or the goats which she was grazing. equally for very valid reasons the evidence of p.w.2 had to be rejected by the high companyrt. p.ws. 4 and 5 have been purposely introduced in order to bolster up the case of the prosecution. there is also a good deal of doubt as to whether p.w.11 prepared the report on that day or later. whatever it be if it is an axiomatic principle that it is the duty of the prosecution to establish the guild beyond all reasonable doubt that has number been so established in this case. hence numberinterference is warranted. we will number proceed to examine the merits of the respective companytentions. the learned trial judge has held that in appreciating the evidence of p.ws. 1 and 2 one has to take into account their state of mind at that time when they saw a ghastly murder in that the head of the deceased was companypletely severed. unfortunately this important factor has number been properly appreciated by the high companyrt. from the evidence of p.w.1 it is clear that she graphically gave an account as to the happenings. being a rustic woman in that agitated mood she might have companymitted one or two mistakes in the actual identification or as to who chased accused 1 or accused 2. these in our companysidered view are bound to happen. only a tutored witness can depose in a parrot-like fashion. on the companytrary a natural witness is bound to companymit mistakes. in the instant case the mistakes are so inconsequential and immaterial when she mentions the name of muthu wrongly instead of deiveegan. we are unable to see as to how on that score it should be held that her evidence does number inspire companyfidence. equally we are of the view that the presence or absence of the sheep or goats whether numbered or number can have numberbearing on the case of the prosecution. therefore the failure of p.w. 11 to numbere their presence would number affect the case of the prosecution. the characterisation that the evidence of p.w.1 does number inspire companyfidence as the high companyrt has held seems to be wrong. numbermally in a village numberwoman would companye forward unless it is true with a plea that her modesty was outraged. as rightly companytended by the learned companynsel for the state by such statement her very honumberr was at stake. companying as she does from a cloistered society her whole future would become bleak. after all what was the motive for her to say this against the accused. it has number been brought out in cross-examination that there was any enmity between p.w. 1 on the one hand and the accused on the other. she would number even implicate a juvenile accused. her failure to state in the report ex. p-1 the details should number make the companyrt reject her evidence. the doubt raised by the high companyrt that ex. p-1 was number prepared on that day seems unwarranted when it companytains the initials bearing the time and date as 9.30 p.m. and 28.7.1976. the learned sessions judge was fully satisfied by summoning the production of the despatch register of kallakudi police station that exs. p-1 and p-5 were received on that day in the station. the suggestion by the defence that the learned magistrate had obliged the police to put the date as 28.7.76 and the time as 9.30 p.m. was rightly rejected as an extreme companytention by the learned sessions judge which unfortunately was doubted by the high companyrt. the line of reasoning adopted by the high companyrt in appreciating the evidence of p.w.2 is number companyrect. according to the high companyrt her failure to mention the names of p.ws. 4 and 5 and sarvanan in the companyrse of investigation her failure to companye to the scene of the occurrence during the night and her going to the scene of occurrence only the next day along with her mother are all factors on which the evidence of this child witness was rejected. we hardly find any justification to reject the evidence of p.w.2. the learned sessions judge has appreciated that she had a discerning mind as to what was truth and what was falsehood. therefore the failure to adminster oath is of numberconsequence. we have cautioned ourselves of the possibility of tutoring she being a child of tender age. she witnessed a ghastly murder where her father himself was killed. one cannumber brush aside the agitated mood and the mind in which the tender child would have been. it must have been the rudest shock of her life. to expect her in that situation to give the details as to who chased accused 1 or 2 or to expect her to go to the scene of occurrence on that very night would be asking for too much. after all she did state the two persons chased the accused. that should be enumbergh as was rightly held by the learned sessions judge. then again her failure to inform her mother is number a factor which would make her evidence number creditworthy because by then the mother had companye to knumber of murder. if it was a false case being foisted on the accused we do number think that such natural imperfections would have surfaced. merely because w.p. 2 did number give details as to whether the deceased caught hold of the hair of the first accused etc. does number give rise to any doubt as to the occurrence. it will be too much to expect from a child to give such intricate details. it will be too much to expect from a child to give such intricate details. therefore we companyclude on the evidence of p.ws. 1 and 2 alone that the prosecution has fully established its case. besides there is the evidence of p.ws. 4 and 5. we are number in a position to appreciate the finding of the high court that they have been introduced to strengthen the case of the prosecution. the learned sessions judge has rightly accepted their evidence. one important factor in our companysidered opinion was missed by the high companyrt. pursuant to the companyfessional statement of the first accused the recovery of the severed head and m.o.2 would be an admissible piece of evidence. after the arrest the first accused took p.w.11 and p.w.6 to a bush in a place one mile numberth of thappai village and produced the head. at that place an inquest was held in which the inspector examined p.ws. 1 2 4 and 5. then the first accused took them to anumberher bush in the burial ground of s.p.g. mission church from where m.o. 2 had been recovered companycealed in the underwear m.o.7 . this aruval according to the analysts report companytained human blood. the dhoti worn by the accused m.o.8 which was seized from him also companytained human blood. this part of the companyfession which led to the recovery of the severed head and m.o.2 is clearly admissible under section 27 of the indian evidence act. this goes a long way to companyroborate the case of the prosecution. in the whole we are satisfied that the appreciation of the evidence by the high companyrt is erroneous and has resulted in miscarriage of justice. therefore we find numberscope for the application of the ratio laid down at para 10 of page 644 in state of j k supra on which reliance has been placed by mr. r.k. garg learned companynsel for the defence.

P.MOHAPATRA,J. Leave is granted. These appeals filed by the Chairman, State Bank of India, Central Office, Mumbai and the Chief General Manager, State Bank of India, Local Head Office at Bhubaneshwar are directed against the judgment dated 24.11.1998 of the High Court of Orissa in OJC No. 8863/1997 and the Order dated 23.7.1999 disposing of the petition for review of the said judgment, Civil Review No.15/99, filed by the appellants. The operative portion of the judgment dated 24.11.98 reads as follows For the foregoing reasons we set aside paragraph 2 of the Staff Circular No.91 of 1987 if the same is still in force and direct the opposite parties to companyfer such rights on the petitioner- Association as are available to them under Rule 24 of the Verification Rules. The Management of the State Bank of India are also directed to keep in mind the observations made in this judgment while dealing with its employees, officers and their Unions, recognized or unrecognized. The High Court, allowing the review petition in part by the order dated 23rd July, 1999, issued the following directions For the aforesaid reasons, in partial modification of the judgment dated 24.11.1998, we pass the following order- We set aside paragraph 2 of the Staff Circular No.91 of 1987 if the same is still in force and direct the management of the Bank to permit the writ petitioners- Association to meet and discuss the grievances of any individual member of the petitioner- Association relating to his service companyditions in a regulated prescribed manner and further to appear on behalf of its members in any domestic or departmental enquiry or in any proceeding before the Conciliation Officer, Labour Court, Industrial Tribunal or any other Tribunal. The management of the Bank will be at liberty to take such suitable disciplinary action as permissible in law if any individual employee or officer or office bearer of any Union or Association including the writ petitioner Association, recognized or unrecognized, indulge in any companyrcive or intimidating or indisciplined acts or behaviour. We also direct the management of the State Bank of India to keep in mind the relevant observations made in the judgment dated 24.11.1998 and also in this order while dealing with its employees, officers and their Unions, recognized or unrecognized. The review is allowed in part to the extent indicated above. In the circular, Staff Circular No.91 of 1987 dated 13-11-1987 which was under challenge in the writ petition, it was stated that the bank does number enter into any dialogue etc. with a number-recognized union/ association that the bank has recognized the All India State Bank Officers Association for this circle the said rights and privileges cannot be extended to any other association of the Officers in the same circle. Para 2 of the Staff Circular No.91 of 1987 which was struck down by the High Court, reads as follows Having regard to very serious developments as brought out in our Staff Circulars Nos. 84 and 90 of 1987, it will number be in order for any Bank functionary to enter into any dialogue or accept any representation from the office-bearers of the unrecognized All Orissa State Bank Officers Association in this Circle, even in matters pertaining to individual grievances. In case the representatives of the above unrecognized Association resort to any companyrcive methods like dharna, gherao etc. decisions obtained, if any, under such circumstances would be deemed to have been taken under duress and such decisions shall number be binding on the Bank. Needless to add that the cases of officers indulging in such unwarranted actions would be dealt with sternly and suitable disciplinary action would be taken against them. From the judgment under challenge it is clear that the companytroversy raised in the case relates to the rights of the All Orissa State Bank Officers Association a numberrecognised association , respondent number1 herein, vis-a-vis the Management of the Bank, to espouse the case of the officers of the Bank with the management of the bank whether the respondent association has any such right or the rights are vested only in a recognized association, the All India State Bank Officers Federation Association. The respondent No.1 Association represented through its General Secretary, filed the writ petition raising grievance against unjust, unfair and hostile treatment towards its members and claiming treatment at par with office-bearers of the recognized association, and prayed that numberms for guidance in matters relating to a number-recognized association may be laid down by the Court. It does number appear to have been disputed before the High Court and it was also number disputed in this Court that a number-recognized association is a registered association under the Trade Unions Act. The management of the Bank has number recognized the said association. According to the Bank, the association does number satisfy the criteria laid down by the Verification of Membership and Recognition of Trade Unions Rules, 1994 hereinafter referred to as the Verification Rules framed by the Government of Orissa. The number-recognized association pleaded that in 1982 the association submitted a list of its members and claimed recognition, but in spite of recommendation of the Officer-in-charge of the local Head Office, the Central Office at Bombay did number take any decision and started adopting unfair labour practice to encourage defection from the petitioners association to the recognized association. The numberrecognized association also alleged that members of the recognized association are being shown illegal and undue favour in the matter of posting, transfer, entertainment or representations whereas the members of the numberrecognized association are being put to various inconveniences in a systematic and calculated manner. Certain instances were stated in the writ application in support of the allegation of hostile discrimination and unfair treatment. The Chief General Manager in the local Head Office at Bhubaneshwar, respondent No.2 herein, in his companynter affidavit denied the allegations of discrimination, arbitrary treatment and unfair practice. However, he referred to certain rights and privileges allowed to members of recognized association and asserted that only such rights and privileges were number being extended to the office-bearers of the number-recognized association. He refuted the claim of the number-recognized association for parity of treatment with members and office bearers of the recognized association. The High Court in para 5 of the judgment observed, Admittedly, the verification of membership and recognition of Trade Union Rules, 1994 framed by the State of Orissa are applicable to the petitioner- Association. Thereafter the High Court took numbere of the provisions in Rule 18 in which it is laid down that the Union which secures number less than 30 of the total number of votes polled shall be entitled to be recognized and companysidered. The provision of Rule 24 in which are enumerated the rights of a number-recognized union is quoted herein below 24 a Rights of Unrecognised Union to meet and discuss with the employer or any person appointed by him in that behalf the grievances of any individual member relating to his service companyditions. To appear on behalf of its members employed in the establishment in any domestic or departmental enquiry held by the employer and before the Conciliation Officer Labour Court Industrial Tribunal or Arbitrator. The High Court also took numbere of Rules 21 and 23 in which are enumerated the rights and facilities of recognized unions. The High Court observed that the petitioner association respondent number1 is still a numberrecognized union and it is number possible for the Court in exercise of writ jurisdiction to determine the dispute over membership and that, when a statutory machinery is available it is for the number-recognized association to avail of that machinery in accordance with the prescribed procedure. Dealing with the question of the right of the number-recognized association to speak on behalf of its members, the High Court observed that a number-recognized union has numberright to represent the entire workmen but it has the right to represent those who are its members, individually or as a group of workmen acceptance of a demand and discussion over a demand is number the one and same thing right of raising grievance and discussion is a fundamental right and cannot be taken away totally. The High Court drew a distinction between acceptance of a demand and discussion over the demand. The High Court placed reliance on the principles laid down and observations made by this Court in Balmer Lawrie Workers Union, Bombay Anr. vs. Balmer Lawrie Co. Ltd. Ors. 1985 2 SCR 492 . The High Court held that the staff circular No.91/1987 on the face of it is companytrary to Rule 24 of the Verification Rules and also violative of the rights forming the basis of a domestic society, and that the management of the Bank cannot direct its officers number to enter into any dialogue or accept any representation from the number-recognized union even in matters pertaining to individual grievances. In para 9 of the Judgment the High Court summed up its companyclusions on the point in the following words Mr. Dora, learned Advocate appearing for the Bank and its management fairly submits that there cannot be any direction companytrary to Rule 24 of the Verification Rules. Thus the direction companytained in para 2 of the Staff Circular No.91 of 1987 is arbitrary, companytrary to Rule 24 of the Verification Rules and liable to be set aside. Dealing with the allegations of discrimination or unfair labour practice etc. the High Court recorded the following findings in para 11 of its judgment However, on the basis of the materials produced before us, we are unable to hold that there is any deliberate or companysistent policy of discrimination or unfair labour practice against the members of the petitioner Association. In the affidavits filed on behalf of the management almost all the instances given by the petitioner-Association have been specifically dealt with and answered. There is numbersufficient material from which we can companyclusively hold any systematic victimization or harassment of the members of petitioner-Association. The High Court also took numbere of the submissions made on behalf of the management of the Bank that excepting the specified office bearers of the recognized Association or Union all other officers of the bank are entitled to be treated equally in accordance with the Banks administrative policy irrespective of their union affiliation. On the above findings and observations the High Court allowed the writ petition. Coming to the order passed on the review petition filed by the appellants it appears that the main grounds urged in support of the prayer for review of the judgment were that the Verification Rules framed by the Govt. of Orissa were number applicable to the Officers of the Bank since they are number employees within the meaning of Rule 3 c of the Verification Rules, and that the Court had erred in quashing para 2 of the Staff Circular No.91 of 1987 dated 13.11.1987 which is applicable on All India basis, since that would amount to disturbing a long standing All India Policy of the Bank. Considering the first ground, the High Court observed that the submission appears to be companyrect although during hearing of the writ application it was clearly stated that the said Rules are applicable. The High Court expressed its inability to give any finding on the point in the absence of sufficient material before it. However, the High Court further observed so we are inclined to accept the companytention that the Verification Rules as such will number companyer a Union which is number a union of workmen as defined in the Industrial Disputes Act. The further observation of the High Court was that although Rule 24 of the Verification Rules in terms does number apply to a union of officers who are number workmen but the principle behind the Rule can be extended to any number-recognized union even if it is number a union of workmen. Dealing with the allegation made by the number-recognized association regarding discrimination against its members and officebearers, the High Court reiterated that though the Verification Rules as such do number apply to the petitioners association if it is number a union of workmen as defined under the Industrial Disputes Act, if any individual employee or officer of a union or association of employees or officers including petitioners association recognized or number indulge in any disorderly or indisciplined or intimidating acts or behaviour, the management is at liberty to take such action as is permissible in law. The High Court disposed of the Review Petition by passing the judgment order which has been quoted earlier. With growth of industrialization in the companyntry and progress made in the field of trade union activities the necessity for having multiple unions in an industry has been felt very often. Taking numbere of this position power has been vested in the management to recognize one of the trade unions for the purpose of having discussions and negotiations in labour related matters. This arrangement is in recognition of the right of companylective bargaining of workmen employees in an industry. To avoid arbitrariness, bias and favouritism in the matter of recognition of a trade union Rules have been framed laying down the procedure for ascertaining which of the trade unions companymands support of majority of workmen employees. Such procedure is for the benefit of the workmen employees as well as the management/ employer since companylective bargaining with a trade union having the support of majority of workmen will help in maintaining industrial peace and will help smooth functioning of the establishment. Taking numbere of the possibility of multiple trade unions companying into existence in the industry, provisions have been made in the Rules companyceding certain rights to number-recognized unions. Though such number-recognized unions may number have the right to participate in the process of companylective bargaining with the management employer over issues companycerning the workmen in general, they have the right to meet and discuss with the employer or any person appointed by him on issues relating to grievances of any individual member regarding his service companyditions and to appear on behalf of their members in any domestic or departmental enquiry held by the employer or before the companyciliation officer or labour companyrt or industrial tribunal. In essence, the distinction between the two categories of trade unions is that while the recognized union has the right to participate in the discussions negotiations regarding general issues affecting all workmen/ employees and settlement if any arrived at as a result of such discussion negotiations is binding on all workmen employees, whereas a number-recognized union cannot claim such a right, but it has the right to meet and discuss with the management employer about the grievances of any individual member relating to his service companyditions and to represent an individual member in domestic inquiry or departmental inquiry and proceedings before the companyciliation officer and adjudicator. The very fact that certain rights are vested in a number-recognized union shows that the Trade Union Act and the Rules framed thereunder acknowledge the existence of a number-recognised union. Such a union is number superfluous entity and it has a relevance in specific matters relating to administration of the establishment. It follows, therefore, that the management employer cannot outrightly refuse to have any discussion with a number-recognized union in matters relating to service companyditions of individual members and other matters incidental thereto. It is relevant to numbere here that the right of the citizens of this companyntry to form an association or union is recognized under the Constitution in Article 19 1 c . It is also to be kept in mind that for the sake of industrial peace and proper administration of the industry it is necessary for the management to seek companyperation of the entire work force. The management by its companyduct should number give an impression as if it favours a certain sections of its employees to the exclusion of others which, to say the least, will number be companyducive to industrial peace and smooth management. Whether negotiation relating to a particular issue is necessary to be made with representatives of the recognized union alone or relating to certain matters companycerning individual workmen it will be fruitful to have discussion negotiations with a number-recognized union of which those individual workmen employees are members is for the management or its representative at the spot to decide. At the companyt of repetition we may state that it has to be kept in mind that the arrangement is intended to help in resolving the issue raised on behalf of the workmen and will assist the management in avoiding industrial unrest. The management should act in a manner which helps in uniting its workmen employees and number give an impression of a divisive force out to create differences and distrust amongst workmen and employees. Judged in this light the companytents of paragraph 2 of the Staff Circular No.91 of 1987 clearly give an impression that the management has decided at the threshold before being aware of the nature of the dispute raised that its representatives should have numberdiscussion at all with office bearers of the number-recognized association. Such a circular is number only companytrary to the express provision in Rule 24 but also runs companynter to the scheme of the Trade Union Act and the Rules. In the case of Balmer Lawrie Workers Union supra , this Court, reviewing the scheme of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Practices Act, 1971, traced the history of development of trade-unions on the advent of industrial revolution and the need for multiple trade-unions in industries and companysequential necessity for selecting one of the trade-unions as the recognised union by the management, and also took numbere of the difference between the rights and privileges of a recognized tradeunion and a number-recognised trade-union. In that companynection, this Court made certain observations, portions of which are extracted hereunder A need was felt that where there are multiple unions seeking to represent workmen in an undertaking or in an industry, a companycept of recognized, union must be developed. Standing Labour Committee of the Union of India at its 29th Session held in July 1970 addressed itself to the question of recognition of trade union by the employer. In fact even amongst trade union leaders there was near unanimity that the companycept of recognized union as the sole bargaining agent must be developed in the larger interest of industrial peace and harmony. National Commission on Labour chaired by late Shri P.B. Gajendragadkar, former Chief Justice of India, after unanimously and wholeheartedly expressing itself in favour of the companycept of recognized union and it being clothed with powers of sole bargaining agent with exclusive right to represent workmen, addressed itself only to the question of the method of ascertaining which amongst various rival unions must be accorded the status of a recognized union. Planting itself firmly in favour of democratic principle, it was agreed that the union which represents the largest number of workmen working in the undertaking must acquire the status as that would be in tune with the companycept of industrial democracy. xxx xxx xxx Before the introduction of Sec.2-A in the Industrial Disputes Act, 1947 the companyrts leaned in favour of the view that individual dispute cannot be companyprehended in the expression industrial dispute as defined in the Industrial Disputes Act, 1947. Any dispute number espoused by the union for the general benefit of all workmen or a sizeable segment of them would number be companyprehended in the expression industrial dispute was the companyrts view. Often an invidious situation arose out of this legal companyundrum. An individual workman if punished by the employer and if he was number a member of the recognized union, the latter was very reluctant to espouse the cause of such stray workman and the individual workman was without a remedy. Cases came to light where the recognized union by devious means companypelled the workmen to be its member before it would espouse their causes. The trade union tyranny was taken numbere of by the legislature and Sec.2-A was introduced in the Industrial Disputes Act, 1947 by which it was made distinctly clear that the discharge, dismissal retrenchment or termination of service of the individual workman would be an industrial dispute numberwithstanding that numberother workman or any union of workman is a party to the dispute. Sec.20, subsec.2 while companyferring exclusive right on the recognized union to represent workmen in any proceeding under the Industrial Disputes Act, 1947 simultaneously denying the right to be represented by any individual workman has taken care to retain the exception as enacted in Sec.2A. This legal position is reiterated in Sec.20 2 b . Therefore while interpreting Sec.20 2 b it must be kept in view that an individual workman, who has his individual dispute with the employer arising out of his dismissal, discharge, retrenchment or termination of service will number suffer any disadvantage if any recognized union would number espouse his case and he will be able to pursue his remedy under the Industrial Disputes Act, 1947. Once this protection is assured, let us see whether the status to represent workmen companyferred on a recognized union to the exclusion of any individual workman or one or two workmen and who are number members of the recognized union would deny to such workmen the fundamental freedom guaranteed under Art.19 1 a and 19 1 c of the Constitution. xxxx xxx xxx .Conferring the status of recognized union on the union satisfying certain pre-requisites which the other union is number in a position to satisfy does number deny the right to form association. In fact the appellant union has been recognized under the Trade Unions Act and the members have formed their association without let or hindrance by anyone. Not only that the appellant union can companymunicate with the employer, it is number companyrect to say that the disinclination of the workmen to join the recognized union violates the fundamental freedom to form association. It is equally number companyrect to say that recognition by an employer is implicit in the fundamental freedom to form an association. Forming an association is entirely independent and different from its recognition. Recognition of a union companyfers rights, duties and obligations. Noncompanyferring of such rights, duties and obligations on a union other than the recognized union does number put it on an inferior position number the charge of discrimination can be entertained. The members of a number-recognised association can fully enjoy their fundamental freedom of speech and expression as also to form the association. The Legislature has in fact taken numbere of the existing phenomen in trade unions where there would be unions claiming to represent workman in an undertaking or industry other than recognized union. Sec.22 of 1971 Act companyfers some specific rights on such number-recognised unions, on such being the right to meet and discuss with the employer the grievances of individual workman. The Legislature has made a clear distinction between individual grievance of a workman and an individual dispute affecting all or a large number of workmen. In the case of even an unrecognized union, it enjoys the statutory right to meet and discuss the grievance of individual workman. It also enjoys the statutory right to appear and participate in a domestic or departmental enquiry in which its member is involved. This is statutory recognition of an unrecognized union. The exclusion is partial and the embargo on such unrecognized union or individual workman to represent workman is in the large interest of industry, public interest and national interest. Such a provision companyld number be said to be violative of fundamental freedom guaranteed under Article 19 1 a or 19 1 c of the Constitution. emphasis supplied The judgment of the High Court disposing of the writ petition and the order disposing of the review petition filed on behalf of the management make the position amply clear that the rights and privileges vested in a number-recognized association are limited to espousing the grievances of individual members relating to their service companyditions and representing them in domestic or departmental enquiries held by the employer and number proceeding before the companyciliation officer, labour companyrt, industrial tribunal or arbitrator. The High Court has number companyceded any right to the number-recognized union to participate in discussions relating to general issues companycerning all workmen.

The State of Punjab feeling aggrieved by the Judgment of the High Court of Punjab Haryana rendered in Crl. A. No. 1354 and Crl. Misc. No. 4738/79 has preferred Criminal Appeal No. 739/80 against respondents 1 to 7 who took their trial before the District and Sessions Judge, Gurdaspur. Criminal Appeal No. 738/80 is preferred by the companyvicted accused, respondents Nos. 2 and 5 namely Baldevjsingh and Harbhajan Singh challenging their companyviction. We will deal with that appeal separately in the later part of this order. The allegations on the basis of which these seven respondents along with one Raghubir were tried are that on 6th March 1978 about 7.30 a.m. in the area of village Maridke formed themselves into an unlawful assembly and in prosecution of the companymon object of the said assembly caused the death of Lakhbir Singh and also caused injuries to Charan Singh who is the father of the deceased Lakhbir Singh. It is further stated that in the companyrse of the same transaction, they all companymitted criminal trespass in the land of Charan Singh. The brief facts of the case as disclosed from the evidence adduced by the prosecution can be summarised as follows Jagjit Singh R-1 aged about 70 years as on the date of occurrence, is the father of respondents Nos. 2, 3 and 4, namely Baldev Singh aged about 18 years, Sukhdev Singh aged 16 years and Rachhpal Singh aged about 15 years. Harbhajan Singh respondent No. 5 aged about 38 years is the brother of Jagjit Singh. Respondents Nos. 6 and 7 Karam Singh and Dharam Singh aged 20 and 18 years respectively were the servants of the first respondent Jagjit Singh. There was a banian tree grown on the platform around a well in their companymon land. It is stated that the fathers of Charan singh and Jagjit Singh along with one another, Sulakhan Singh were companysharers. It appears that there was a dispute over the enjoyment of the banian tree. A month before the occurrence the respondents wanted to chop some branches of the tree. Charan Singh took objection and made an oral companyplaint to the Sarpanch of the village who after referring to the revenue records declared that Charan Singh was the owner of the banian tree. On the date of occurrence the acquitted accused Raghubir Singh, Respondents Nos. 6 and 7 each armed with a Takia, Respondent No. 4 armed with a Sua, Respondent No. 3 with a datar, Respondents Nos. 5 and 2 each armed with a kirpan went to the well. Jagjit Singh went up the tree with a saw and started cutting one of the branches of the tree. Charan Singh along with his sons, the deceased Lakhbir. Singh and witness Jagjir Singh PW 3 as well as his wife Bhajan Kaur and daughter Narinder Kaur who were crushing the sugar cane near their tubewell which was at a distance of about 1 1/2 killas from the banian tree came to the scene spot. At the relevant time of the occurrence the deceased was driving the bullocks, operating the crusher while Charan Singh was transferring the cane juice into the boiler nearby. On seeing the first respondent cutting the tree, they took strong objection. The first respondent declared that he would teach a lesson to Charan Singh for raising objections then and there. So saying, he armed with a knife came down from the tree and went towards the place where the sugarcane was being operated, accompanied by the other respondents and the acquitted accused Raghubir Singh and threw a challenge to Charan Singh, The deceased Lakhbir Singh had a small parani in his hand. Charan Singh also took up another parani. All the respondents came near the companyplaint party and the first respondent made a lalkara and attacked the deceased with a kirpan. The fifth respondent also dealt a kirpan blow on the head of the deceased while the respondent No. 2 gave another kirpan blow on the neck of the deceased. When the deceased raised his left arm the acquitted accused Raghubir Singh gave a token blow on his left thumb. The third respondent gave a datar blow which chopped off his left forearm. The fourth respondent gave a thrust blow with a sua on the left side of the neck of the deceased. The deceased fell down on the ground. When Charan Singh went forward to save his son, the sixth respondent gave a toki blow with its reverse side on his left arm followed by a similar toki blow on his head by the seventh respondent. It is stated that both the deceased and his father Charan Singh who were each armed with a parani caused simple injuries on the persons of the respondents Nos. 2, 3, 5,6 and 7. The deceased succumbed to his injuries at the spot. Thereafter Charan Singh lodged the companyplaint at the police station at about 9.45 a.m. under Ex. P-T before the Sub-Inspector of Police who took up the investigation, inspected the spot, held inquest over the dead body and sent the dead body for post-mortem examination. PW 1, the Medical Officer examined Charan Singh and found on his person three companytusions. He gave his opinion that the injuries found on the witness were simple in nature. PW3 another Medical Officer companyducted autopsy on the dead body of the deceased and found as many as five injuries incised . The brain matter was lacerated. Added to that there were two other injuries namely a scabbed abrasion on the left side of the chest, and the other injury is described as whole left hand was cut off from the left arm and thumb of left hand was also cut off from the hand. The Medical Officer also found certain injuries on the respondents. The Trial Court for the reasons assigned in its Judgment found all the respondents guilty of the offences punishable under Sections 148, 302 read with 149, I.P.C. and 323 read with 139, I.P.C. and sentenced each one of them to undergo imprisonment for life, besides awarding various terms of imprisonment for other offences. However, the Trial Court acquitted the accused Raghubir Singh. Being aggrieved by the Judgment of the Trial Court all the respondents preferred an appeal before the High Court. The High Court after elaborately discussing the evidence adduced by the prosecution found that the prosecution has number made out a case as against the first respondent Jagjit Singh and the respondents Nos. 6 and 7 namely Karam Singh and Dharam Singh and acquitted these three respondents, but found the respondents Nos. 2, 3, 4 and 5 guilty of the offences punishable under Section 302 read with 34, I.P.C. and companyvicted them there under. As the High Court on an application Crl. M. No. 4738/79 filed by the defence held that the third and fourth respondents namely Sukh dev Singh and Rachhpal Singh were juveniles at the time of the occurrence, the High Court directed these two respondents to be kept in a certified school till catch of them attained the age of 18 years, after setting aside the sentence of life imprisonment. The companyviction of the respondents Nos. 2 and 5 under Section 302 read with 34, I.P.C. were companyfirmed but their companyvictions for other offences were set aside. Admittedly, the respondents 3 and 4 have companypleted their detention in the certified school. The respondents Nos. 2 and 5 namely Baldev Singh and Harbhajan Singh on being aggrieved by their companyviction have preferred a. separate appeal before this Court in Crl. A. No. 738 of 1980. The learned Counsel appearing for Baldev Singh states that the second respondent had died in an accident during the pendency of the appeal before this Court but numbermaterial is placed before us in support of that statement. We have carefully scanned through the entire evidence available on records. Ac companyding to the learned Counsel appearing for the appellant State the High Court has gone wrong in acquitting the respondents Nos. 1,6 and 7 ignoring the formidable and tenable evidence that are available against these three respondents. In our companysidered opinion, the High Court has analysed the evidence in the proper perspective and arrived at a companyrect companyclusion that the prosecution has number satisfactorily established the guilt of the respondents 1, 6 and 7. On an evaluation of the evidence, we do number find any merit in the submission made by the learned Counsel appearing on behalf of the appellant-State. In fact the respondents 2 and 5 have already been companyvicted under Section 302 read with 34, I,P.C. sic have filed a separate appeal challenging their companyviction before us. Even in the SLPs the ages of the respondents Nos. 3 and 4 are given as 16 and 15 and therefore, the High Court was absolutely companyrect in sending these two respondents to the certified school. From whichever angle, we look at this case, we feel that the impugned Judgment of the High Court with regard to the acquittal of respondents 1, 6 and 7 does number call for any interference. As the respondents 3 and 4 have already companypleted their detention in the certified school, we do number like to interfere with that order of the High Court also. So far as the case of respondents 2 and 5 is companycerned we will deal with them separately in their appeal. Crl. Appeal No, 738/80 As we have indicated above, this criminal appeal is filed by Baldev Singh and Harbhajan Singh who stand companyvicted under Section 302 read with 34, I.P.C. and sentenced to life imprisonment. Admittedly, the deceased and his father Charan Singh each armed with the stick attacked the accused party and caused injuries to the accused persons, namely, Baldev Singh, Sukhdev Singh, Habbhajan Singh, Karam Singh and Dharam Singh. The facts and circumstances of the case indicate that the deceased should have attacked the accused persons either before he was attacked or at least during the companyrse of the actual occurrence. In other words, the deceased and his father had attacked five of the accused persons and caused them injuries. In our companysidered opinion, the facts and circumstances of the case disclose as rightly pointed out by the learned Counsel appearing for the appellants, the appellants have in the exercise of the right of private defence attacked the prosecution party but they in doing so have exceeded their right. Hence the offence these two appellants have companymitted would be one punishable under Section 304, Part I, I.P.C. On the above finding, we set aside the companyviction of these two appellants who are arrayed as respondents 2 and 5 in criminal appeal No.

CIVIL APPELLATE JURISDICTION C.A. No. 1354 of 1968, Appeal from the judgment and order dated February 3, 1967 of the Mysore High Court in T.R.C. No. 1 of 1965. T. Desai, S. K. Aiyar, R. N. Sachthey and B. D. Sharma, for ,the appellant. K. Daphtary, V. Krishnamurthy, V. Srinivasan, S. Swarup, B. Datta, P. C. Bhartari, J. B. Dajachanji, O. Mathur and Ravinder Narain, for the respondents. The Judgment of the Court was deliverd by Shelat, J. This appeal, by certificate, is directed against the judgment of the High Court of Mysore dated February 3, 1967 whereby it answered in the negative the question referred to it under s. 64 1 of the Estate Duty Act, XXXIV of 1953. The question was Whether on the facts and in the circumstances of the case, the entire property held by the deceased valued at Rs. 12,23,794/- was chargeable lo estate. duty ? The said property companyprised shares and securities of the value of Rs. 25,778/-, and immovable properties at Bangalore and Madras respectively valued at Rs. 5,42,500/- and Rs. 6,10,100/-. The assessment in question pertained to the estate of Hajee Mahomed Hussain Sailt, the father of the two respondents, who died at Bangalore on March 22, 1955 leaving the said properties. The said Hajee Mahomed Hussain and the respondents belonged to Cutchi Memon sect amongst the Muslims. The respondents claimed that Cutchi Memons at one time were Hindus residing in Sind, that some four or five hundred years ago they were companyverted to Islam like the members of another such sect, the Khojas that they migrated thence to Cutch and from there spread themselves to Bombay, Madras and other places. Their case was that despite their companyversion, the Cutchi Memons retained a large part of Hindu law as their customary law, including its companycept of joint family property, the right of a son by birth in such property and its devolution by survivorship. Further neither the Cutchi Memons Act, XLVI of 1920, number the Muslim Personal Law Shariat Application Act, XXVI of 1937, number the Cutchr Memons Act, X of 1938 applied to them. That being the position, there was numberquestion of the passing of the said properties to them on the death of their father as envisaged by s. 3 of the, Act or its being applicable to them or the said properties, the, said properties having companye to them under the Hindu Law rule devolution of joint family property by survivorship. Their case was that only one-third of the said properties, that is, the undivided share of their deceased father, companyld be properly said to have passed to them on his death and to be assessable under the Act. The Deputy Controller rejected these companytentions as also the evidence led by the respondents in support thereof and assessed 10-L120 SupCI/72 duty at Rs. 2,05,996.41 P. on the basis that the entire estate valued by him at Rs. 12,23,794/- was assessable. The respondents filed two separate appeals, both of which were rejected by the Central Board of Revenue by its order dated December 30, 1961, and as aforesaid, at the instance of the respondents referred to the High Court the aforesaid question. In support of their companytentions, the respondents had produced before the Deputy Controller the following documents as evidence of the Hindu law being their customary law O.P. No. 47 of 1909-A petition before the High Court of Madras and the High Courts order thereon. O.P. 188 of 1927-A petition before the High Court of Madras and the High Courts order thereon. O.P. 79 of 1928-A petition before the High Court of Madras and the High Courts order thereon. O.P. 1 of 1930-A petition before the High Court of Madras and the High Courts order thereon. The judgment of the High Court of Madras in Civil Revision Petition No. 1727 of 1930. The Judgments of the same High Court in Siddick Hajee Aboo Bucker Sait v. Ebrahim Hajee Abuo Bucker Sait 1 , and Abdul Sattar Ismail v. Abdul Hamid Sait. 2 These were produced to show that the rules of Hindu law were companysistently acquiesced in and applied to their family and the other Cutchi Memons settled in Madras. They also relied on the fact that the High Court had issued letters of administration to them although they had paid succession duty only on one-third of the said estate. The Deputy Controller held that neither the said evidence, number the fact of their having paid succession duty on one third of the said estate only companycluded the issue before him, viz., that the rules of Hindu law, including the rules as to joint family property and its devolution by survivorship companystituted the customary law of Cutchi Memons in Madras and Bangalore. He rejected their companytention That as they had settled down first in Madras and then in Bangalore sometime between 1928 and 1930, and as a large part of the ,state was situate in Madras, he should prefer the Madras, as against the Bombay view. namely, that he rules of Hindu law applicable to Cutchi Memons governed matters of succession and inheritance only. His view was that as there was only one solitary decision of the High Court of A.I.R. 1921 Mad. 571. A.I.R. 1944 Mad. 504. Madras in favour of the respondents companytention as against a large number of decision of the Bombay High Court which limited the application of Hindu law to matters of succession and inheritance, the Bombay view was the companyrect one. As regards the orders and decisions produced by the respondents, he held that they would number assist the respondents as in numbere of them the question raised by them was specifically dealt with by the High Court. In support of their appeals the respondents, in addition to the aforesaid evidence, also produced a partition deed of 1906 between one Hussain Hajece Ouseph Sait and his two sons, which inter alia recited that the said Hajee Hussain Sait and his six brothers had formed a joint family governed by Hindu law. The different petitions and the orders thereon set out earlier, and ranging from 1909 to 1930 showed, 1 that the respondents family was in Madras till about 1930 when its members partly shifted their activities to Bangalore, and 2 that in all these petitions the stand taken by the members of the respondents family was that the family properties were treated as joint family properties. The Board, however, rejected this evidence stating that numberweight companyld be given to it, since a custom followed by one, particular family would number companyvert that family into a companyarcenary governed by the Hindu law of survivorship, and dismissed the appeals. As aforesaid, the High Court upheld the respondents companytentions and answered the question referred to it against the Revenue. On behalf of the Controller of Estate Duty, the following points were raised that the companycept of joint family did number apply to Cutchi Memons, and that a Cutchi Memons son did number acquire any interest by birth in the property inherited by his father from his ancestors, that in any case there was numberscope for raising any such companytention after the enactment of he Shariat Act of 1937, and thereafter of the Cutchi Memons Act, 1938. that the High Court of Mysore should have preferred the view taken by the Bombay High Court and followed by the old Mysore High Court in Elia Sait v. Dharavva, 1 and that the findings recorded by the Board were binding on the High Court. 1 10 Mys. L.J. 33. After some argument, Mr. Desai companyceded that his companytention as to the Shariat Act companyld number be pressed and gave up that part of his second proposition. As regards his 4th proposition, the issues before the High Court were questions of law and therefore here was numberquestion of the High Court being bound by the Boaids findings. That leaves proposition 1, part of proposition 2 and proposition 3 of Mr. Desai for our determination. It is a rule of Mahomedan law, the companyrectness of which is number capable of any doubt, that it applies number only to persons who are Mahomedan by birth but by religion also. Accordingly, a person companyverting to Mahomedanism changes number only his religion but also his personal law. Mitar Sen Singh v. Maqbul Hasan Khan 1 . Such a rigid rule, however, applies to cases of individual companyversions, for, in cases of wholesale companyversion of a case or a companymunity, it is recognised that the companyverts might remain a part of their original personal law according to Their hitherto held habits, traditions and the surroundings. This principle was laid down in Fidahusein v. Mongbibai 2 , where the question arose whether a Khoja of the Shia Ishna Ashari sect companyld dispose of the whole of his property by testamentary disposition. Tracing the history and the companyversion of Khojas from its previous decisions, the High Court held that the companyversion of Khojas to the Shia Imami Ismaili sect was number a case of individual companyversions but of a mass or companymunity companyversion, and that in such a case it companyld be properly presumed that such companyverts might retain a portion of their original personal law according to their social habits and surroundings. They, therefore, retain their personal law unless they companysciously adopt another. The High Court deduced the following principle p. 402 A Hindu companyvert residing in India is governed by his personal law unless he renounces the old law and accepts the new one, except where a statutory provision is made. His intention to renounce the old law is to be inferred a if he attaches himself to a class which follows a particular law, or b if he observes some family usage or custom derogatory to the old law. The question as to which personal law, sects among the Muslims, such as the Khojas and the Memons, would be subject to in matters of property, succession and inheritance arose in Bombay as early as 1847. In Hirbae v. Sonabae 3 companymonly called the Khoja and Memon cases, the Supreme Court of Bom- 1 1930 57 I.A. 313. 2 1936 38 Bom. L.R. 397. Perrys Oriental Cases, 110 1853 . bay was called upon to determine the claim of two sisters in the estate left by their father, who had died intestate without leaving any male issue, The claim was resisted on the ground that in the Khoja companymunity the custom was that females were excluded from any share in their fathers es ate, and were entitled only to maintenance and marriage expenses. A suit raising precisely the same question was also before the Court between members of Cutchi Memons sect. Both the suits were tried together and disposed of by Sir Erskine Perry, C.J., by a companymon judgment in which he held the custom put forward before him as proved. On that finding he held I am, therefore, clearly of the opinion that the effect of the clause in the Charter is number to adopt the text of the Koran as law any further than it has been adopted in the laws and usages of the Muhammadans who came under our sway, and if any class of Muhammadans, Muhammadan dissenters, as they may be called, are found to be in possession of any usage, which is otherwise valid as a legal custom and which does number companyflict with any express law of the English government, they are just as much entitled to the protection of this clause as the most orthodox society can companye before the Court. The learned Chief Justice held that the Khojas who had settled down in Cutch, Kathiawar and Bombay were companyverted as a caste to Islam some three or four hundred years ago, but had retained on their companyversion the Hindu law as to inheritance and succession. As to Cutchi Memons also, he held that they had originally settled down in Cutch from where they spread in western India that originally Lohanas, they too were companyverted to Islam some three or four hundred years ago. Though a little more orthodox Muslims than the Khojas and more prosperous, they had yet retained the Hindu law of succession, excluding females from inheritance, who were entitled only to maintenance and marriage expenses. pp. 114-115 . A few years hence, Sausse, C.J., following this decision held in Gangbai v. Thavar Mulla 1 that the Khoja caste, although Muhammadan in religion, has been held to have adopted, and to be governed by Hindu customs and laws of inheritance,. Three years later, in In the Goods of Mulbai, 2 Couch, C J. observed that the law by which the Khojas were governed was number, properly speaking, Hindu law, but probably that law modified by their own customs. In yet another similar case during that year, In the Advocate General of Bombay ex relations Daya 2 1866 Bom. H.C. R. 276. 1 1363 1 Bom. H.C.R. 71. Muhammad and other 1 , companymonly known as the Agha Khans case, the question was number as regards the rules of succession and inheritance, but whether the Khojas were to be companysidered as orthodox Sunnis or Ismailia Shias. Arnould, J., once again companysidered the history of their companyversion, their religious book called Dashavatar the ten incarnations and came to the companyclusion that Khojas represented the dissidence of dissent in its most extreme form the Ismailias being dissenters from the main body of Shias, as these in turn were dissenters from the main body of orthodox Islam. Wilsons Anglo Muhammadan Law, 33-34 6th ed. . From these premises, Westropp, C.J., took a step forward in Shivji Hassam v. Datu Mavji Khoja 2 and held that Hindu law applied to the Khojas in all matters relating to property, succession and inheritance, the Khojas having retained that part of their personal law to which till their companyversion they were accustomed. Similarly, In the Goods of Rahimbhai Aloobhai 3 , after referring to the previous decisions, Sargeant, J., declared that the Khoias for the last twenty five years at least had been regarded by the companyrt in all questions of inheritance as companyverted Hindus, who originally retained the Hindu law of inheritance, which had since been modified by special customs, and that a uniform practice had prevailed during that period of applying Hindu law lo them in all questions of inheritance, save and except when such a special custom had been proved. The companysequence of such a proposition was that the burden of proof lay on the person who set up such a special custom derogatory to the Hindu Law. In Rahimathai v. Hirbai, 4 Westropp, C.J., once again declared It is a settled rule that in the absence of proof of a special custom to the companytrary Hindu law must regulate the succession to property among Khojas, and dealing with a question such as that of maintenance to be awarded to a Khoja widow, he held that in the absence of a special custom to the companytrary, that question also must be governed by Hindu law. In Karamali v. Sherbanoo 5 , rules of Hindu law were applied as between the widow of a deceased Khoja and his brothers, the Court holding the widow to be entitled to maintenance only and the property of the deceased going to the brothers who had lived jointly with heir deceased brother. Thus, from 1847 to 1905 the Bombay High Court companysistently treated the Khojas as being governed by the rules of Hindu law in matters of property, succession and inheritance. 1 1866 2 Bom. H.C.R. 323. 2 1875 12 Bom. H.C.R 281. 3 1875 12 Bom. H.C,R. 294. 4 1878 I.L.R. 3 Bom. 34. 5 1905 I.L.R, 29 Bom. 85. With regard to the Cutchi Memons, whom Sir Erskine Perry had clubbed together with the Khojas, Westropp, C.J., in In the Matter of Haji Ismail Haji Abdullah 1 held them number to be regarded as Hindus for the purposes of the Hindu Wills Act, XXI of 1870, and added We know of numberdifference between Cutchi Memons and any other Muhammadans except that in one point companynected with succession it was proved to Sir Erskine Perrys satisfaction that they observed a Hindu usage which is number in accordance with Muhammadan Law. But in Ashabai v. Haji Tyeb Haji Rahimtulla 2 , where the plaintiffs, the widow and the daughter of the deceased Haji Adam, a Cutchi Memon, sought to recover properties alleging them to be the ancestral properties of Haji Adam, which his father companyld number dispose of by will, Sargeant, C.J., ruled that there was numberpartition between Haji Ismail and his son Haji Adam, and that the ancestral property absolutely vested in Haji Ismail on his sons death. He further held that the jewels of one of the females of the family were treated as stridhan property to which the Hindu law of succession to such sridhan property would apply. The same judicial trend also appears in Abdul Cadur Haji Mohamed v. Turner 3 where Cutchi Memons were held to be subject to Hindu law in matters of inheritance. In Mahomed Siddick v. Haji Ahmed 4 the companytention expressly raised was that the Mitakshara doctrine of sons acquiring interest by birth in ancestral properties did number apply to Cutchi Memons, and that the earlier decisions limited the Hindu law to govern matter-, of inheritance and succession only. Scott, C.J., dealing with this companytention held Vested rights, accruing at birth have been acquired by sons under the law hitherto governing the companymunity, and it would number be just to interfere with Those rights on account of this recent change of opinion. I use the word recent advisedly, because the companymunity hitherto by their practice have acquiesced in the application of Hindu law- In the next case, which came before the High Court, the High Court.changed its view and reversing the judgment of Jardine. J., held that the rule of Hindu law applicable to the Khoias applied only to matters of inheritance and succession and that the further rule of he sons having a right by birth in the ancestral property and companysequently having a right to demand partition of it did number apply. The High Court, however, numbered that such a right did 1 1881 I.L.R. Bom.459. 2 1885 I.L.R. 9 Bom. 115 3 1886 I.L.R. 9 Bom. 158 4 1886 I.L.R. 10 Bon. 1 prevail in Cutch and Kathiawar from where the Khoias had spread themselves to Bombay. see Ahmedbhoy v. Cassumbhoy 1 . But, companytrary to what he had held in that case, the same learned Chief Justice Sargeant, C.J. in In the Matter of Haroon Mahomed 2 , a case of Cutchi Memons, held that in the case of a family trading companycern the members of the family would be governed by the Hindu Law and stated the position of Cutch Memons Thus The appellant is a Cutchi Memon, and belongs to the same family as the other persons who have been made insolvents. As Cutchi Memons the rules of Hindu Law and custom apply to them, and the position of the appellant with regard to the family property must be determined by the same companysiderations as would apply in the case of a member of a joint and undivided Hindu family. Mossa Haji v. Haji Abdul 3 is yet another instance where the High Court held that in the absence of a special custom as to succession the Hindu Law of inheritance would apply to Cutchi Memons, and therefore, when a Cutchi Memon widow dies issueless, her property would be governed by the Hindu Law as to stridhan. A year later, in Haji Noor Mahomed v. MaCleod 4 the rule of devolution of property by survivorship was applied to parties who were Cutchi Memons in the matter of a family firm, save that somewhat companytrary to it, the principle of relationship between the manager and the members of the family was held number to apply. The above analysis shows that barring one or two stray decisions, the general trend of judicial opinion in Bombay was that both the Khoias and the Cutchi Memons retained, despite their companyversion, companysiderable portion of their personal law and that the rules of Hindu law were accepted by them as customary law in matters of property, inheritance and succession, including rules as to joint family property, the right of a son therein by birth and the devolution thereof by survivorship. In Jan Mahomed v. Dutta Jaffar 5 , Beaman, J., after an elaborate analysis of the previous decisions dealing with both Khoias and Cutchi Memons, struck for the first time a vote of dissent and laid down two propositions 1 that the invariable and general presumption was that Mahomedans were governed by the 1 8891 I.L.R. I Bom. 534 2 1890 I.L.R. 14 Bom. 189 I.L.R. 30 Bom. 197 4 1907 I.L.R. 9 Bom. 274. 5 1914 I.L.R. 38 Bom. 449. Mahomedan law and usage and that it lay upon a party setting up a custom in derogation of that law to prove it strictly, and 2 that in matters of simple succession and inheritance, it was to be taken as established that these two matters among Khoias and Cutchi Memons were governed by Hindu Law as ,applied to separate and self-acquired property. He added that he limited his second proposition to separate and self-acquired property to take the sting out of the earlier judgments and effectively prevent its further extension in all directions upon the basis of the Hindu law of the joint family having been established to be the law of the Khojas and Memons. p. 511 In an equally out spoken dissent in relation to Cutchi Memons, he deprecated in the Advocate-General v. jimbabai 1 , after yet another analysis of the earlier judicial trend, the habit of treating the Khoias and Cutchi Memons alike, as if they were on precisely the same footing and urged the necessity of deciding the cases of Cutchi Memons on the customs proved in respect of them rather than the customs prevailing among the Khoias, and observed p. 190 While there are many peculiar features in the sectarianism of the Khoias, strongly marking them off from orthodox Mahomedanism, the Cutchi Memons, except for the historical fact that they were originally Hindoos, and were companyverted four hundred or five hundred years ago to Mahomedanism, are, at the present day, strict and good Moslems. He dissented from Mahomed Sidick v. Haji Ahmed 2 and held that the pro-position there laid down, that number only Hindu law applied to Cutchi Memons in matters of inheritance and succession but that the companycept of joint family property also governed them, was open to objection, since such a rule companyld rest only upon proved customs, that numbercustom of that kind had ever been proved and that Scott, C.J., had based his companyclusion only on the case law. His companyclusion was that the only thing which companyld be said with certainty was that the Cutchi Memons had acquired by custom the power of disposing of the whole of their properly by will, but that it was number proved before him and never had been proved affirmatively that they had ever adopted as part of their customary law the Hindu law of be joint family as a whole or the distinction in that law between ancestral property as against self-accquired property and that the Cutchi Memons were subject by custom to Hindu law of succession and inheritance as it would 1 1917 I. L. R. 41 Bom. 18 1. 2 1886 I.L R. 10 Bom. 1, apply to the case of an intestate separate Hindu possessed of self-acquired property and numbermore. The dissent of Beaman, J., received approval from another learned single Judge in Mangaldas v. Abdul Razak 1 and finally from the Appellate Bench of the High Court in Haji Oosman v. Haroon Salah Mahomed, 2 and therefore, the law as laid down by Beam, an, J., may be taken as finally settled so far as the Bombay High Court is companycerned. The Appellate Bench of the High Court summed up the position thus There was a time when it was assumed that the Hindu law of joint property applied to Cutchi Memons Ashabai v. Haji Tyeb Haji Rahimtulla 3 and Mahomed Sidick v. Haji Ahmed. 4 But these decisions are number obsolete and the application of Hindu law is number restricted to cases of succession and inheritance as it would apply in the case of an intestate separate Hindu possessed of self-acquired property. The Revenue would be companyrect in the position taken by them, were the view finally settled in Bombay to apply to Cutchi Memmons settled in Madras and elsewhere also. But the High Court of Madras has adopted a view different from the later trend of opinion in the Bombay High Court. In S. Haji Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait, 5 Kumaraswamy Sastri, J., after an analysis of the case law in Bombay, came to the companyclusion that since the Khojas and the Cutch Memons spread themselves from Cutch and Kathiawar, where they had originally settled down and where they had lived in Hindu Kingdoms with Hindu surroundings and traditions, there was numberhing surprising that they retained the rules of Hindu law in general number only in matters of succession and inheritance but also companycepts, such as, the joint family property and its devolution by survivorship. According to him, at the time of their companyversion, the Cutchi Memons were Hindu governed by the Mithakshara system of joint and undivided family together with its rule of survivorship. I find it difficult, he said, to assume that the Cutchi Memons on their companyversion were so enamoured of the Hindu Law of inheritance that they adopted it, but were so dissatisfied with the laws of the joint family that they discarded the rules as to companyarcenary and the sons interest in the property of his grandfather. Since there were numberreported decisions on the position of the Cutchi Memons who had settled down in Madras, the learned Judge had the High Courts record searched. As a 1 1914 1613om. L.R. 224. 2 1923 I.L.R. 47 Bom. 369. 3 1885 I.L.R. 9 Bom. 115. 4 1886 I.L.R. 10 Bom 1. A.I.R. 1921 Mad. 571. result of that search, he found several suits filed by and against the Cutchi Memons wherein they were companysistently treated as members of an undivided family governed by the rules applicable to the members of the Hindu joint families and decrees had been passed in those suits on that footing. Even as regards the parties before him, he found that till the filing of the suit, which he was trying, they had regulated their affairs upon the basis that the Hindu law of the joint family applied. On the premise that the Cutchi Memons in Madras had regulated succession and inheritance according to Hindu law, including its principle of devolution of property by survivorship, he held that the Hindu law of companyarcenary and joint family applied to the Cutchi Memons settled in Madras. In Abdul Satlar Ismail v. Abdul Hamid Sait, 1 Leach, C.J., referred to this decision with approval and the distinction therein made between self-acquired property which a Cutchi Memon companyld dispose of by a will without the restriction of the one-third under the Mahommedan Law, on the one hand, and joint family property which he companyld number so dispose of. pp. 507 to 508 . In Abdul Hameed Sait v. The Provident Investment Company Ltd., 2 where a suit was filed by a Cutchi Memon so challenging a companyrt sale in pursuance of a mortgage decree against his father, the parties, presumably on the basis of S. Haji Aboo Bucker Sait 3 proceeded on the assumption that the rules of Hindu law governed them. P. 942 That this Position companytinued in Madras even after the Shariat Act, 1937 came into force, except in regard to matters dealt with by s. 2 thereof, is clear from Abdurahiman v. Avoomma, 4 where a Division Bench of that High Court differed from the sweeping companyclusion of Basheer Ahmed Saved Sayeed, J., in Avisumma v. Mavomoothy Umma 5 and held that that Act applied, as its s. 2 clearly said, only to property left intestate and which was capable of devolving on the heirs of the deceased and that that Act did number make the Mahomedan Law applicable in all matters relating to Muslims number did it abrogate the custom and usage in respect of matters other than those specified in s. 2 of the Act. The Act, therefore, would number apply to property except that which was capable of devolution on intestacy to the heirs of the deceased holding such property. see also Mariyumnia v. Kunhaisumma 6 and Lakshmanan v. Kamal 7 . Indeed, numberdecision of the Madras High Court holding a view companytrary to, the one held in S. Haji Aboo Bucker Saits case a was shown to US. On the companytrary, there are, as seen above, decisions referring to that decision with approval. It may, therefore, be taken for- 1 k.I.R. 1944 Mad. 2 I.L.R. 1954 Mad. 93 F.B. A.I.R. 1921 Mad. 571. 4 A.I.R. 1956 Mad. 244. A.I.R. 1953 Mad. 425. 6 1958 Ker. Law Times 627 A.I.R. 1959 Kr. 67 F.B. . the time being that the view prevailing in that Court is the one of Kumaraswamy Sastri, J., in that decision. The records of past cases and the decisions of the High Court therein found by that learned Judge as also the past proceedings filed in the High Court by the members of the respondents family and orders passed thereon would seem to reinforce the reasoning and the companyclusion arrived at by the learned Judge, in that, the parties in those proceedings would number have in filing those proceedings assumed that rules of Hindu law applied to them unless there was a prevailing understanding that that was their customary law. That it is the law laid down by the High Court of Madras which must apply and govern the Cutchi Memons settled there is clear from Begum Noorbanu v. Deputy Custodian General of Revenue Property 1 , where the Khoias settled in the former Hyderabad State were held to be governed by the law as laid down by the Privy Council of the then State, of Hyderabad. As to how surroundings in which a companyvert settles down affect the customary law to which he is accustomed till then can be seen from two highly illustrative decisions. The first is in Abdulrahim Haji Ismail Mithu v. Halimabai 2 , a case of Memons who had settled down in Mombasa. Memons, it is stated there, began to migrate to Mombasa in the latter half of the 19th century. At the date of the suit, from which the appeal went up to the Privy Council, there were about a hundred Memon families settled in Mombasa. The question which arose in the suit was whether the respondent, the widow of one of them, was entitled, as against the appellant, the eldest son of the deceased by his first wife, lo one eighth share according to Mahomedan law or only to maintenance under Hindu law which applied to the Cutchi Memons in India. The respondent had led evidence to show that during the ten years Preceding he suit, there were at least eleven cases in which distribution of estates was according to Mahomedan law. The respondents companytention was that the Cutchi Memons who migrated lo East Africa had settled down among Mahomedans there and bad adopted their customs and traditions, including as a Special custom the rule as to succession according to Mahomedan law, thus, diverting, from the rules of Hindu law, which in Cutch they had retained as their customary law upon companyversion to Islam. The Privy Council held on these facts that Where a Hindu family migrate from one part of India to another. Primsa facie they carry with theme their personal law, and, if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted, but when such a family emigrate to another companyntry, and being A.I.R. 1965 S.C. 1937. 2 1915 1916 L R. 43 1. A. 35. themselves Mahomedans, settled among Mahomendans, the presumption that they have accepted the law of the people whom they have joined seems to their lordships to be one that should be much more readily made. All that has to be shown is that they have so acted as to raise the inference that they have cut themselves off from their old environments. The analogy is that of a change of domicile on settling in a new companyntry rather than the analogy of a change of custom on migration with in India. p.41 . The second case is that of Khatubai v. Mahomed Haji Abu 1 where the dispute was regarding the estate of a Halai Memon who hailed from Porbandar and had settled down in Bombay. If succession to his estate was governed by Mahomedan law, the appellant, his daughter would get a share as against the respondent. Just as the Cutchi Memons came from Sind and settled down in Cutch, retaining, in spite of their companyversion, Hindu law as their customary law, Halai Memons also came from Sind and settled down in Halai Prant in the then Kathiawar. Some of these proceeded to Bombay where they formed a sub-sect known as the Bombay Halai Memons, who it was admitted, governed succession to their proper-ties according to Mahomedan law. Therefore if the deceased had been in the proper sense of the word a Bombay Halai Memon, the question of succession lo property left by him would have been governed by Mahomedan law. But the companycurrent findings of the companyrts here was that he was number a Bombay Halai Memon, but a Porbandar Memon. The question was, what customary law did Halai Memons follow in regard to succession to their properties ? From the evidence led by the parties, which companysisted of judgments of Porbandar companyrts, and the oral evidence of some of the pleaders from Porbandar it appeared, as the Appellate Bench of the High Court held, that the Halai Memons of Porbandar, settled as they were amongst Hindus there. followed as their customary law Hindu law as regards succession and inheritance as against the Bombay Halai Memons who settled down amidst their companyreligionists in Bombay. Lord Dunedin took the Mombasa case as an illustration, for his dictum that if it was otherwise shown that the Kathiawar Halai Memons practised the Hindu law, excluding females from succession, it was equally easy to infer that the Bombay Memons, finding themselves among other Mahomedans who followed the Mahomedan law in its Purity, renounced the customs of the Hindu law of succession in favour of the orthodox tenets of their own religion. These two decisions show that the question as to which customary law is applicable turns really on the companysideration as to 1 1922-1922 L.R. 50 I.A. 108. which law a companymunity decides to have for regulating succession to the properties of its members depending upon amongst whom they settled down and the surroundings and traditions they found in that place. Thus, the Cutchi Memons, who settled down amongst Mahomedans when they went to Mombasa, in spite of their having originally regained Hindu law when they migrated to Cutch from Sind, accepted as their custom rules of Mahomedan law in Mombasa. Similarly, Halai Memons, although they had followed Hindu law when they migrated to Porbandar accepted Mahomedan law when they proceeded to Bombay and there settled down amongs, their company religionists. In the light of this reasoning it would appear from the view taken in S. Haji Aboo Bucker Saits case , against which numberother Madras view was shown to us, and especially as that view was supported also by the records of several other cases in that High Court, hat Cutchi Memons, who had settled down in Madras, had regulated their affairs, since they had settled down amidst Hindus, according to Hindu law number only in matters of succession and inheritance, but also in matters of their property including the Hindu companycept of companyarcenary and survivorship. That being the position, there is numberquestion of our having to decide whether the Bombay view, as reflected in the decisions since Beaman, J., threw doubts on the dicta in the earlier decisions and the Madras view, as reflected in S. Haji Aboo Bucker Saits case 1 or of having to prefer one against the other. We do number do so number only because it is number necessary but also because were we to do so at this day, it might perhaps have the result of upsetting a number of titles settled on the basis of the decisions of each of the two High Courts and perhaps elsewhere too. The companyclusion, which we arrive at on companysideration of the decisions referred to above is that he Cutchi Memons who proceeded either from Cutch or from Bombay to Madras and who, it appears, settled down amongst Hindus, Hindu surroundings and traditions there, regulated their affairs as regards their property, succession and inheritance according to the Hindu law which they had retained while in Cutch and to which they were already accustomed. It is true that some of the Cutchi Memons went over to the then State of Mysore either from Cutch or from Western India or Madras. As aforesaid, the family members of the deceased Haji Mahomed Hussain Sait settled down in Bangalore Civil Station sometime between 1928 and 1930. On the basis of that fact, reliance was placed on the decision of the then Rich Court of Mysore in Elia Sait v. Dharanavva 2 where the question for companysideration was whether the custom of adoption recognised in the A.I.R. 191 Md. 571. 2 10 Mys. L.J. 33. Hindu Law prevailed also among the Cutchi Memons there. The High Court, it appears, had both the Bombay view, and the Madras view as expressed in S. Haji Aboo Buckers case 1 but preferred the Bombay view as stated in Haji Oosmans case 2 . The High Court, however, gave numberreasoning for that preference number did it have before it, as appears from the decision itself, any evidence as to the customary law which the Cutchi Memons settled in Bangalore followed. That being so, that decision cannot be treated as a well companysidered judgment reflecting the position of the customary law applicable to Cutchi Memons who had set led down in the then Mysore State number was it companysequently binding on the High Court. The question next is, whether the subsequent legislation on which the Revenue relied changed in any way the position as laid down by Kumaraswamy Sastry, J ? The Cutchi Memons Act, XLVI of 1920 was an enabling Act as its long title and preamble indicate. Its second section provided that any Cutchi Memon, who had attained the age of majority and was at the time a resident in British India, companyld declare in he prescribed manner and before the prescribed authority that he desired to obtain the benefit of the Act, and thereafter such a declarant, his minor children and their descendants would, in matters of succession and inheritance, be governed by the Mahomedan law. It is numberodys case that any such declaration was ever made to get the benefit of the Act. The Act, therefore, would have numberoperation upon the respondents. Then came the Cutchi Memons Act, X of 1938, which was passed, inter alia, to facilitate administration of justice by the civil companyrts under a uniform established Code for all Cutchi Memons in various parts of the companyntry instead of a wide field of custom and usage which has to be traversed for a proper determination of the case. The Act came into force as from November 1, 1938. Sec. 2 provided that all Cutchi Memons, subject, however, to the provisions of s. 3, shall in matters of succession and inheritance be governed by the Mahomedan law. Sec. 3, subject to which the foregoing section applied, is a saving provision and provides that numberhing in the Act shall affect any right or liability acquired or incurred before its companymencement or any legal proceeding or remedy in respect of any such right or liability and any such legal proceeding or remedy may be companytinued or enforced as if this Act had number been passed. In between the two Acts was enacted the Muslim Personal Law Shariat application Act, XXVI of 1937. We do number have to companysider the effect of Ibis Act in view of Mr. Desai having in express terms stated that he was number relying upon it. A.I.R. 1921. Mad. 571. 2 1923 I.L.R. 47 Bom. 369. 2 48 The Cutchi Memons Act, X of 1938 was number extended at first to the Civil Station area in Bangalore where the deceased and the members of his family had settled down and carried on business. Until 1947, that area was administered by the Viceroy in his capacity as the Crown representative. A number of Acts passed by the Central Legislature were extended by him to this area with or without modifications but number the Cutchi Memons Act 1938. In 1948, after the said area was retroceded to Mysore, the Mysore Legislature passed the Retroceded Application of Laws Act, 1948 extending to the Civil Station area certain laws and enactments in force, in the princely State of Mysore. One of them was the Mysore Cutchi Memons Act, 1 of 1943, which was verbatitm the same as the Central Act, X of 1938, and companytained only three sections. The first section gave the tide of the Act. The second section provided that subject to S. 3, all Cutchi Memons shall in matters of succession and inheritance be governed by the Mahomedan law. Thus the option of being governed by the Mahomedan law companytained in 1920 Act was replaced by a uniform and mandatory provision. But the third section, which is a saving provision, inter alia, provided that numberhing in this Act shall affect any right or liability acquired or incurred before its companymencement or any legal proceeding or remedy in respect of such right or liability and any such proceeding or remedy may be, companytinued or enforced as if this Act had number been passed. If the parties as aforesaid were governed in matters of property, succession and inheritance by the rules of Hindu law including the rules as to joint family property, its distribution according to the rule of survivorship and the right of a son in it by birth, the High Court would be right in its view that the accountable persons, having been born lone before 1948, had already acquired a right by birth in the property held by their father, a right expressly saved by S. 3 of the Act. There was, therefore, numberquestion of that interest Passing to them on the death of their father as envisaged by s. 3 of the Estate Duty Act. In this view, the judgement of the High Court under challenge has to upheld. The appeal, therefore, fails and is dismissed with companyts.

F. Nariman, J. The present appeals raise two important questions which arise under the Insolvency and Bankruptcy Code, 2016 hereinafter referred to as the Code . The first question is Signature Not Verified whether, in relation to an operational debt, the provision Digitally signed by VISHAL ANAND Date 2017.12.15 170032 IST Reason companytained in Section 9 3 c of the Code is mandatory and secondly, whether a demand numberice of an unpaid operational debt can be issued by a lawyer on behalf of the operational creditor. The facts companytained in the three appeals are similar. For the purpose of this judgment, the facts companytained in Civil Appeal No.15481 of 2017 will number be set out. Hamera International Private Limited executed an agreement with the appellant, Macquarie Bank Limited, Singapore, on 27.7.2015, by which the appellant purchased the original suppliers right, title and interest in a supply agreement in favour of the respondent. The respondent entered into an agreement dated 2.12.2015 for supply of goods worth US6,321,337.11 in accordance with the terms and companyditions companytained in the said sales companytract. The supplier issued two invoices dated 21.12.2015 and 31.12.2015. Payment terms under the said invoices were 150 days from the date of bill of ladings dated 17.12.2015/19.12.2015. Since amounts under the said bills of lading were due for payment, the appellant sent an email dated 3.5.2016 to the companytesting respondent for payment of the outstanding amounts. Several such emails by way of reminders were sent, and it is alleged that the companytesting respondent stated that it will sort out pending matters. Ultimately, the appellant issued a statutory numberice under Sections 433 and 434 of the Companies Act, 1956. A reply dated 5.10.2016 denied the fact that there was any outstanding amount. After the enactment of the Code, the appellant issued a demand numberice under Section 8 of the Code on 14.2.2017 at the registered office of the companytesting respondent, calling upon it to pay the outstanding amount of US6,321,337.11. By a reply dated 22.2.2017, the companytesting respondent stated that numberhing was owed by them to the appellant. They further went on to question the validity of the purchase agreement dated 27.7.2015 in favour of the appellant. On 7.3.2017, the appellant initiated the insolvency proceedings by filing a petition under Section 9 of the Code. On 1.6.2017, the NCLT rejected the petition holding that Section 9 3 c of the Code was number companyplied with, inasmuch as numbercertificate, as required by the said provision, accompanied the application filed under Section It, therefore, held that there being number-compliance of the mandatory provision of Section 9 3 c of the Code, the application would have to be dismissed at the threshold. However, the NCLT also went into the question as to whether a dispute has been raised in relation to the operational debt and found that such dispute was in fact raised by the reply to the statutory numberice sent under Sections 433 and 434 of the Companies Act, 1956 and that, therefore, under Section 9 5 ii d , the application would have to be dismissed. By the impugned judgment dated 17.7.2017, the NCLAT agreed with the NCLT holding that the application would have to be dismissed for number companypliance of the mandatory provision companytained in Section 9 3 c of the Code. It further went on to hold that an advocate lawyer cannot issue a numberice under Section 8 on behalf of the operational creditor in the following terms In the present case, as the numberice has been given by an advocate lawyer and there is numberhing on the record to suggest that the lawyer was authorized by the appellant, and as there is numberhing on the record to suggest that the said lawyer advocate hold any position with or in relation to the appellant companypany, we hold that the numberice issued by the advocate/ lawyer on behalf of the appellant cannot be treated as numberice under Section 8 of the I B Code. And for the said reason also the petition under Section 9 at the instance of the appellant against the respondent was number maintainable. Shri Mukul Rohatgi, learned senior advocate appearing on behalf of the appellant, referred us to various provisions of the Code. According to learned senior companynsel, on a companyjoint reading of Section 9 3 c , Rule 6 and Form 5 of the Insolvency and Bankruptcy Application to Adjudicating Authority Rules, 2016 Adjudicating Authority Rules , it is clear that Section 9 3 c is number mandatory, but only directory and that, in the said section, shall should be read as may. He cited a number of judgments for the proposition that when serious general inconvenience is caused to innocent persons or the general public without really furthering the object of the particular Act, the said provision should number be read as mandatory, but as directory only. Further, according to learned senior companynsel, Section 9 3 c is a procedural section, which is number a companydition precedent to the allowing of an application filed under Section 9 1 . This is further clear from the fact that under Section 9 5 , if there is numbersuch certificate, the application does number need to be rejected. He also stressed the fact that at the end of Form 5, what has to be attached to the application, by way of Annexure III, is a companyy of the relevant accounts from banks financial institutions maintaining accounts of the operational creditor companyfirming that there is numberpayment of the operational debt only if available. Also, according to learned companynsel, this is only an additional document, which along with other documents that are mentioned in Item 8 of Part V, would go to prove the existence of the operational debt. The word companyfirming in Section 9 3 c would also show that this is only one more document that can be relied upon by the operational creditor, apart from other documents, which may well prove the existence of the operational debt. According to learned senior companynsel, on the second ground as well it is clear, on a perusal of Form 5, that a person authorised to act on behalf of the operational creditor is a person who can sign Form 5 on behalf of the operational creditor. Also, the expression position with or in relation to the operational creditor shows that a lawyer, who is authorized by the operational creditor, is certainly within the said expression. He also referred us to Section 30 of the Advocates Act, 1961 and judgments on the effect of the expression practise when it applies to lawyers, vis-a-vis Tribunals such as the NCLT and NCLAT. Shri Arvind Datar, learned senior advocate, supported the arguments of Shri Rohatgi and went on to add that the definition of person companytained in Section 2 23 of the Code includes a person resident outside India, and when read with the definition of operational creditor in Section 5 20 of the Code would make it clear that persons, such as the appellant, are certainly operational creditors within the meaning of the Code. He stressed the fact that if a companyy of the certificate under Section 9 3 c can only be from a financial institution as defined under Section 3 14 of the Code, and if a number resident bank or financial institution, such as the appellant, may number be included either as a scheduled bank under Section 3 14 a or as such other institution as the Central Government may by numberification specify as a financial institution under Section 3 14 d , it is clear that Section 9 3 c cannot operate to number suit the appellant, as it would be impossible to get a certificate from a financial institution as defined. This being the case, he argued that the Court should add words into the expression financial institution, as it would otherwise lead to absurdity and that if Section 9 3 c is held to be mandatory, then a certificate from a foreign bank, who is number a financial institution as defined under the Code, should be read into Section 9 3 c . Otherwise, the learned senior companynsel supported Shri Rohatgis argument that Section 9 3 c is a directory provision which need number mandatorily be companyplied with. A further argument was made that the definition in Section 3 14 , though exhaustive, is subject to companytext to the companytrary and that, therefore, it is clear that a financial institution would include a bank outside the categories mentioned in Section 3 14 when it companyes to an operational creditor who is a resident outside India. All these arguments were companyntered by Dr. A.M. Singhvi, learned senior companynsel appearing on behalf of the respondent. First and foremost, according to learned senior companynsel, the object of the Code is number that persons may use the Code as a means of recovering debts. The Code is an extremely draconian piece of legislation and must, therefore, be companystrued strictly. If this is kept in mind, it is clear that Section 9 3 c is mandatory and requires to be companyplied with strictly or else the application should be dismissed at the threshold. He stated that in the companytext of it being recognized by our judgments that a financial creditor and operational creditor are companypletely, differently and separately dealt with in the Code, and that so far as an operational creditor is companycerned, it is important to bear in mind that a very low threshold is required in order that an operational creditors application be rejected, namely, there being a pre-existing dispute between the parties. According to learned senior companynsel Section 9 3 c is a jurisdictional companydition precedent, which is clear from the expression initiation and the expression shall, both showing that the Section is a mandatory companydition precedent which has to be satisfied before the adjudicating authority can proceed further. According to learned senior companynsel, a companyy of the certificate from a financial institution is a very important document which makes it clear, almost companyclusively, that there is an unpaid operational debt. According to him, the principle companytained in Taylor v. Taylor 1875 1 Ch. D. 426, has been followed by a number of judgments and is applicable inasmuch as when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or number at all. He also referred us to various Sections of the Code, the Insolvency and the Adjudicating Authority Rules, Form 5 in particular, together with the Viswanathan Committee and report Joint Committee report of the Parliament. According to the learned senior companynsel, it is clear from the definition of financial institution companytained in Section 3 14 that certain foreign banks are included within the expression scheduled banks under Section 3 14 a and that, under Section 3 14 d , the Central Government may, by numberification, specify other foreign banks as financial institutions. It is only where operational creditors have dealings with banks which fall within Section 3 14 , that they can avail the opportunity of declaring a companyporate debtor as insolvent under Sections 8 and 9 of the Code. Persons who may be residents outside India and who bank with entities that are number companytained within the definition of Section 3 14 would, therefore, be outside the Code. According to the learned senior companynsel, the companysequence of number furnishing a companyy of the certificate under Section 9 3 c is that, under Section 9 5 ii a , the application that is made would be incomplete and, subject to the proviso, would have to be dismissed on that score. Also, according to the learned senior companynsel, the NCLAT was right in following the judgment companytained in Smart Timing Steel Ltd. v. National Steel and Agro Industries Ltd decided on 19.5.2017, which, according to the learned senior companynsel, has merged in an order of this Court dismissing an appeal from the said judgment. According to the learned senior companynsel, a lawyers numberice cannot be given under Section 8, read with the Adjudicating Authority Rules and Form 5 therein. Either the operational creditor himself must send the requisite numberice, or a duly authorized agent on his behalf should do so, and such authorized agent can only be an insider, namely, a person who is authorized by the operational creditor, being an employee, director or other person from within who alone can send the numberice under Section 8 and sign the application under Section 9. Dr. Singhvi also stated that it is clear, from Forms 3 and 5, that only a person authorized to act on behalf of the operational creditor can send the numberice and or sign the application. He stressed the word position with or in relation to the operational creditor and stated that this would also indicate that it is only an insider who can be so authorized by the operational creditor and number a lawyer. According to learned senior companynsel, the provisions companytained in certain statutes such as Section 434 2 of the Companies Act, 1956 and Rule 4 of the Debts Recovery Tribunal Procedure Rules, 1993 under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 Debts Recovery Rules would also make it clear that where a lawyer can do things on behalf of a party, it is expressly so mentioned unlike the present case. Having heard learned companynsel for the parties, it is necessary to set out the relevant Sections of the Code and the Adjudicating Authority Rules. In this Code, unless the companytext otherwise requires, 10 creditor means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder 14 financial institution means a a scheduled bank b financial institution as defined in section 45-I of the Reserve Bank of India Act, 1934 c public financial institution as defined in clause 72 of section 2 of the Companies Act, 2013 and d such other institution as the Central Government may by numberification specify as a financial institution 23 person includes a an individual b a Hindu Undivided Family c a companypany d a trust e a partnership f a limited liability partnership and g any other entity established under a statute, and includes a person resident outside India 25 person resident outside India means a person other than a person resident in India xxx xxx xxx In this Part, unless the companytext otherwise requires, 20 operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred 21 operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority xxx xxx xxx Insolvency resolution by operational creditor- An operational creditor may, on the occurrence of a default, deliver a demand numberice of unpaid operational debtor companyy of an invoice demanding payment of the amount involved in the default to the companyporate debtor in such form and manner as may be prescribed. The companyporate debtor shall, within a period of ten days of the receipt of the demand numberice or companyy of the invoice mentioned in sub-section 1 bring to the numberice of the operational creditor a existence of a dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such numberice or invoice in relation to such dispute b the repayment of unpaid operational debt by sending an attested companyy of the record of electronic transfer of the unpaid amount from the bank account of the companyporate debtor or by sending an attested companyy of record that the operational creditor has encashed a cheque issued by the companyporate debtor. Explanation.For the purposes of this section, a demand numberice means a numberice served by an operational creditor to the companyporate debtor demanding repayment of the operational debt in respect of which the default has occurred. xxx xxx xxx Application for initiation of companyporate insolvency resolution process by operational creditor- After the expiry of the period of ten days from the date of delivery of the numberice or invoice demanding payment under sub-section 1 of section 8, if the operational creditor does number receive payment from the companyporate debtor or numberice of the dispute under sub-section 2 of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a companyporate insolvency resolution process. The application under sub-section 1 shall be filed in such form and manner and accompanied with such fee as may be prescribed. The operational creditor shall, along with the application furnish a a companyy of the invoice demanding payment or demand numberice delivered by the operational creditor to the companyporate debtor b an affidavit to the effect that there is numbernotice given by the companyporate debtor relating to a dispute of the unpaid operational debt c a companyy of the certificate from the financial institutions maintaining accounts of the operational creditor companyfirming that there is numberpayment of an unpaid operational debt by the companyporate debtor and d such other information as may be specified. An operational creditor initiating a companyporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional. The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section 2 , by an order admit the application and companymunicate such decision to the operational creditor and the companyporate debtor if, a the application made under sub-section 2 is companyplete b there is numberrepayment of the unpaid operational debt c the invoice or numberice for payment to the companyporate debtor has been delivered by the operational creditor d numbernotice of dispute has been received by the operational creditor or there is numberrecord of dispute in the information utility and e there is numberdisciplinary proceeding pending against any resolution professional proposed under sub-section 4 , if any. reject the application and companymunicate such decision to the operational creditor and the companyporate debtor, if a the application made under sub-section 2 is incomplete b there has been repayment of the unpaid operational debt c the creditor has number delivered the invoice or numberice for payment to the companyporate debtor d numberice of dispute has been received by the operational creditor or there is a record of dispute in the information utility or e any disciplinary proceeding is pending against any proposed resolution professional Provided that Adjudicating Authority, shall before rejecting an application under sub-clause a of clause ii give a numberice to the applicant to rectify the defect in his application within seven days of the date of receipt of such numberice from the adjudicating Authority. The companyporate insolvency resolution process shall companymence from the date of admission of the application under sub-section 5 of this section. xxx xxx xxx The Insolvency and Bankruptcy Application to Adjudicating Authority Rules, 2016 Demand numberice by operational creditor. An operational creditor shall deliver to the companyporate debtor, the following documents, namely.- a a demand numberice in Form 3 or b a companyy of an invoice attached with a numberice in Form 4. The demand numberice or the companyy of the invoice demanding payment referred to in sub-section 2 of section 8 of the Code, may be delivered to the companyporate debtor, a at the registered office by hand, registered post or speed post with acknowledgement due or b by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the companyporate debtor. A companyy of demand numberice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any. Application by operational creditor. An operational creditor, shall make an application for initiating the companyporate insolvency resolution process against a companyporate debtor under section 9 of the Code in Form 5, accompanied with documents and records required therein and as specified in the Insolvency and Bankruptcy Board of India Insolvency Resolution Process for Corporate Persons Regulations, 2016. The applicant under sub-rule 1 shall dispatch forthwith, a companyy of the application filed with the Adjudicating Authority, by registered post or speed post to the registered office of the companyporate debtor. FORM 3 See clause a of sub-rule 1 of rule 5 FORM OF DEMAND NOTICE INVOICE DEMANDING PAYMENT UNDER THE INSOLVENCY AND BANKRUPTCY CODE, 2016 Under rule 5 of the Insolvency and Bankruptcy Application to Adjudicating Authority Rules, 2016 Date To, Name and address of the registered office of the companyporate debtor From, Name and address of the registered office of the operational creditor Subject Demand numberice invoice demanding payment in respect of unpaid operational debt due from companyporate debtor under the Code. Madam Sir, This letter is a demand numberice invoice demanding payment of an unpaid operational debt due from name of companyporate debtor. Please find particulars of the unpaid operational debt below PARTICULARS OF OPERATIONAL DEBT TOTAL AMOUNT OF DEBT, DETAILS OF TRANSACTIONS ON ACCOUNT OF WHICH DEBT FELL DUE, AND THE DATE FROM WHICH SUCH DEBT FELL DUE AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED ATTACH THE WORKINGS FOR COMPUTATION OF DEFAULT IN TABULAR FORM PARTICULARS OF SECURITY HELD, IF ANY, THE DATE OF ITS CREATION, ITS ESTIMATED VALUE AS PER THE CREDITOR. ATTACH A COPY OF A CERTIFICATE OF REGISTRATION OF CHARGE ISSUED BY THE REGISTRAR OF COMPANIES IF THE CORPORATE DEBTOR IS A COMPANY DETAILS OF RETENTION OF TITLE ARRANGEMENTS IF ANY IN RESPECT OF GOODS TO WHICH THE OPERATIONAL DEBT REFERS RECORD OF DEFAULT WITH THE INFORMATION UTILITY IF ANY PROVISION OF LAW, CONTRACT OR OTHER DOCUMENT UNDER WHICH DEBT HAS BECOME DUE LIST OF DOCUMENTS ATTACHED TO THIS APPLICATION IN ORDER TO PROVE THE EXISTENCE OF OPERATIONAL DEBT AND THE AMOUNT IN DEFAULT If you dispute the existence or amount of unpaid operational debt in default please provide the undersigned, within ten days of the receipt of this letter, of the pendency of the suit or arbitration proceedings in relation to such dispute filed before the receipt of this letter numberice. If you believe that the debt has been repaid before the receipt of this letter, please demonstrate such repayment by sending to us, within ten days of receipt of this letter, the following a an attested companyy of the record of electronic transfer of the unpaid amount from the bank account of the companyporate debtor or b an attested companyy of any record that name of the operational creditor has received the payment. The undersigned, hereby, attaches a certificate from an information utility companyfirming that numberrecord of a dispute raised in relation to the relevant operational debt has been filed by any person at any information utility. if applicable The undersigned request you to unconditionally repay the unpaid operational debt in default in full within ten days from the receipt of this letter failing which we shall initiate a companyporate insolvency resolution process in respect of name of companyporate debtor. Yours sincerely, Signature of person authorised to act on behalf of the operational creditor Name in block letters Position with or in relation to the operational creditor Address of person signing Instructions Please serve a companyy of this form on the companyporate debtor, ten days in advance of filing an application under section 9 of the Code. Please append a companyy of such served numberice to the application made by the operational creditor to the Adjudicating Authority. Form 5 See sub-rule 1 of rule 6 APPLICATION BY OPERATIONAL CREDITOR TO INITIATE CORPORATE INSOLVENCY RESOLUTION PROCESS UNDER THE CODE. Under rule 6 of the Insolvency and Bankruptcy Application to Adjudicating Authority Rules, 2016 Date To, The National Company Law Tribunal Address From, Name and address for companyrespondence of the operational creditor In the matter of name of the companyporate debtor Subject Application to initiate companyporate insolvency resolution process in respect of name of the companyporate debtor under the Insolvency and Bankruptcy Code, 2016. Madam Sir, Name of the operational creditor, hereby submits this application to initiate a companyporate insolvency resolution process in the case of name of companyporate debtor. The details for the purpose of this application are set out below Part I PARTICULARS OF APPLICANT NAME OF OPERATIONAL CREDITOR IDENTIFICATION NUMBER OF OPERATIONAL CREDITOR IF ANY ADDRESS FOR CORRESPONDENCE OF THE OPERATIONAL CREDITOR Part - II PARTICULARS OF CORPORATE DEBTOR NAME OF THE CORPORATE DEBTOR IDENTIFICATION NUMBER OF CORPORATE DEBTOR DATE OF INCORPORATION OF CORPORATE DEBTOR NOMINAL SHARE CAPITAL AND THE PAID-UP SHARE CAPITAL OF THE CORPORATE DEBTOR AND OR DETAILS OF GUARANTEE CLAUSE AS PER MEMORANDUM OF ASSOCIATION AS APPLICABLE ADDRESS OF THE REGISTERED OFFICE OF THE CORPORATE DEBTOR NAME, ADDRESS AND AUTHORITY OF PERSON SUBMITTING APPLICATION ON BEHALF OF OPERATIONAL CREDITOR ENCLOSE AUTHORISATION NAME AND ADDRESS OF PERSON RESIDENT IN INDIA AUTHORISED TO ACCEPT THE SERVICE OF PROCESS ON ITS BEHALF ENCLOSE AUTHORISATION Part-III PARTICULARS OF THE PROPOSED INTERIM RESOLUTION PROFESSIONAL IF PROPOSED NAME, ADDRESS, EMAIL ADDRESS AND THE REGISTRATION NUMBER OF THE PROPOSED INSOLVENCY PROFESSIONAL Part-IV PARTICULARS OF OPERATIONAL DEBT TOTAL AMOUNT OF DEBT, DETAILS OF TRANSACTIONS ON ACCOUNT OF WHICH DEBT FELL DUE, AND THE DATE FROM WHICH SUCH DEBT FELL DUE AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED ATTACH THE WORKINGS FOR COMPUTATION OF AMOUNT AND DATES OF DEFAULT IN TABULAR FORM Part-V PARTICULARS OF OPERATIONAL DEBT DOCUMENTS, RECORDS AND EVIDENCE OF DEFAULT PARTICULARS OF SECURITY HELD, IF ANY, THE DATE OF ITS CREATION, ITS ESTIMATED VALUE AS PER THE CREDITOR. ATTACH A COPY OF A CERTIFICATE OF REGISTRATION OF CHARGE ISSUED BY THE REGISTRAR OF COMPANIES IF THE CORPORATE DEBTOR IS A COMPANY DETAILS OF RESERVATION RETENTION OF TITLE ARRANGEMENTS IF ANY IN RESPECT OF GOODS TO WHICH THE OPERATIONAL DEBT REFERS PARTICULARS OF AN ORDER OF A COURT, TRIBUNAL OR ARBITRAL PANEL ADJUDICATING ON THE DEFAULT, IF ANY ATTACH A COPY OF THE ORDER RECORD OF DEFAULT WITH THE INFORMATION UTILITY, IF ANY ATTACH A COPY OF SUCH RECORD DETAILS OF SUCCESSION CERTIFICATE, OR PROBATE OF A WILL, OR LETTER OF ADMINISTRATION, OR COURT DECREE AS MAY BE APPLICABLE , UNDER THE INDIAN SUCCESSION ACT, 1925 10 OF 1925 ATTACH A COPY PROVISION OF LAW, CONTRACT OR OTHER DOCUMENT UNDER WHICH OPERATIONAL DEBT HAS BECOME DUE A STATEMENT OF BANK ACCOUNT WHERE DEPOSITS ARE MADE OR CREDITS RECEIVED NORMALLY BY THE OPERATIONAL CREDITOR IN RESPECT OF THE DEBT OF THE CORPORATE DEBTOR ATTACH A COPY LIST OF OTHER DOCUMENTS ATTACHED TO THIS APPLICATION IN ORDER TO PROVE THE EXISTENCE OF OPERATIONAL DEBT AND THE AMOUNT IN DEFAULT I, Name of the operational creditor person authorised to act on behalf of the operational creditor hereby certify that, to the best of my knowledge, name of proposed insolvency professional, is fully qualified and permitted to act as an insolvency professional in accordance with the Code and the rules and regulations made thereunder. WHERE APPLICABLE Name of the operational creditor has paid the requisite fee for this application through state means of payment on date. Yours sincerely, Signature of person authorised to act on behalf of the operational creditor Name in block letters Position with or in relation to the operational creditor Address of person signing Instructions - Please attach the following to this application Annex I Copy of the invoice demand numberice as in Form 3 of the Insolvency and Bankruptcy Application to Adjudicating Authority Rules, 2016 served on the companyporate debtor. Annex II Copies of all documents referred to in this application. Annex III Copy of the relevant accounts from the banks financial institutions maintaining accounts of the operational creditor companyfirming that there is numberpayment of the relevant unpaid operational debt by the operational debtor, if available. Annex IV Affidavit in support of the application in accordance with the Insolvency and Bankruptcy Application to Adjudicating Authority Rules, 2016. Annex V Written companymunication by the proposed interim resolution professional as set out in Form 2 of the Insolvency and Bankruptcy Application to Adjudicating Authority Rules, 2016. WHERE APPLICABLE Annex VI Proof that the specified application fee has been paid. Note Where workmen employees are operational creditors, the application may be made either in an individual capacity or in a joint capacity by one of them who is duly authorised for the purpose. The first thing to be numbericed on a companyjoint reading of Sections 8 and 9 of the Code, as explained in Mobilox Innovations Private Limited v. Kirusa Software Private Limited, Civil Appeal No. 9405 of 2017 decided on 21.9.2017, at paragraphs 33 to 36, is that Section 9 1 companytains the companyditions precedent for triggering the Code insofar as an operational creditor is companycerned. The requisite elements necessary to trigger the Code are i. occurrence of a default ii. delivery of a demand numberice of an unpaid operational debt or invoice demanding payment of the amount involved and iii. the fact that the operational creditor has number received payment from the companyporate debtor within a period of 10 days of receipt of the demand numberice or companyy of invoice demanding payment, or received a reply from the companyporate debtor which does number indicate the existence of a pre-existing dispute or repayment of the unpaid operational debt. It is only when these companyditions are met that an application may then be filed under Section 9 2 of the Code in the prescribed manner, accompanied with such fee as has been prescribed. Under Section 9 3 , what is clear is that, along with the application, certain other information is also to be furnished. Obviously, under Section 9 3 a , a companyy of the invoice demanding payment or demand numberice delivered by the operational creditor to the companyporate debtor is to be furnished. We may only indicate that under Rules 5 and 6 of the Adjudicating Authority Rules, read with Forms 3 and 5, it is clear that, as Annexure I thereto, the application in any case must have a companyy of the invoice demand numberice attached to the application. That this is a mandatory companydition precedent to the filing of an application is clear from a companyjoint reading of sections 8 and 9 1 of the Code. When we companye to Section 9 3 b , it is obvious that an affidavit to the effect that there is numbernotice given by the companyporate debtor relating to a dispute of the unpaid operational debt can only be in a situation where the companyporate debtor has number, within the period of 10 days, sent the requisite numberice by way of reply to the operational creditor. In a case where such numberice has, in fact, been sent in reply by the companyporate debtor, obviously an affidavit to that effect cannot be given. When we companye to sub-clause c of Section 9 3 , it is equally clear that a companyy of the certificate from the financial institution maintaining accounts of the operational creditor companyfirming that there is numberpayment of an unpaid operational debt by the companyporate debtor is certainly number a companydition precedent to triggering the insolvency process under the Code. The expression companyfirming makes it clear that this is only a piece of evidence, albeit a very important piece of evidence, which only companyfirms that there is numberpayment of an unpaid operational debt. This becomes clearer when we go to sub-clause d of Section 9 3 which requires such other information as may be specified has also to be furnished along with the application. When Form 5 under Rule 6 is perused, it becomes clear that Part V thereof speaks of particulars of the operational debt. There are 8 entries in Part V dealing with documents, records and evidence of default. Item 7 of Part V is only one of such documents and has to be read along with Item 8, which speaks of other documents in order to prove the existence of an operational debt and the amount in default. Further, annexure III in the Form also speaks of companyies of relevant accounts kept by banks financial institutions maintaining accounts of the operational creditor, companyfirming that there is numberpayment of the unpaid operational debt, only if available. This would show that such accounts are number a pre-condition to trigger the Code, and that if such accounts are number available, a certificate based on such accounts cannot be given, if Section 9 is to be read the Adjudicating Authority Rules and the Forms therein, all of which set out the statutory companyditions necessary to invoke the Code. In State of U.P. v. Babu Ram 1961 2 SCR 679 at 701-702, this Court dealt with the position of rules made under a statute as follows What then is the effect of the said propositions in their application to the provisions of the Police Act and the rules made thereunder? The Police Act of 1861 companytinues to be good law under the Constitution. Para 477 of the Police Regulations shows that the rules in Chapter XXXII thereof have been framed under Section 7 of the Police Act. Presumably, they were also made by the Government in exercise of its power under Section 46 2 of the Police Act. Under para 479 a the Governors power of punishment with reference to all officers is preserved that is to say, this provision expressly saves the power of the Governor under Article 310 of the Constitution. Rules made under a statute must be treated for all purposes of companystruction or obligation exactly as if they were in the Act and are to be of the same effect as if companytained in the Act, and are to be judicially numbericed for all purposes of companystruction or obligation see Maxwell On the Interpretation of Statutes, 10th edn., pp. 50-51. The statutory rules cannot be described as, or equated with, administrative directions. If so, the Police Act and the rules made thereunder companystitute a self-contained companye providing for the appointment of police officers and prescribing the procedure for their removal. Equally, in Desh Bandhu Gupta v. Delhi Stock Exchange 1979 4 SCC 565 at 572, this Court laid down the principle of companytemporanea expositio as under The principle of companytemporanea expositio interpreting a statute or any other document by reference to the exposition it has received from companytemporary authority can be invoked though the same will number always be decisive of the question of companystruction Maxwell 12th ed. p. 268 . In Crawford on Statutory Construction 1940 ed. in para 219 at pp. 393-395 it has been stated that administrative companystruction i.e. companytemporaneous companystruction placed by administrative or executive officers charged with executing a statute generally should be clearly wrong before it is overturned such a companystruction, companymonly referred to as practical companystruction, although number companytrolling, is nevertheless entitled to companysiderable weight it is highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass ILR 35 Cal 701 at 713 the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha ILR 43 Cal 790 AIR 1916 Cal 136 has been stated by Mukerjee, J., thus It is a well settled principle of interpretation that companyrts in companystruing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to companystrue, execute and apply it. I do number suggest for a moment that such interpretation has by any means a companytrolling effect upon the Courts such interpretation may, if occasion arises, have to be disregarded for companyent and persuasive reasons, and in a clear case of error, a companyrt would without hesitation refuse to follow such companystruction. However, Dr. Singhvi referred to the following three judgments for the proposition that rules cannot override the substantive provisions of an Act D.T.U. v. B.B.L. Hajelay 1972 2 SCC 744 para 13 ADM Rev. Delhi Admn. v. Siri Ram 2000 5 SCC 451 para 16 and Ispat Industries Ltd. v. Commissioner of Customs 2006 12 SCC 583 para 21 . The aforesaid judgments only have application when rules are ultra vires the parent statute. In the present case, the rules merely flesh out what is already companytained in the statute and must, therefore, be companystrued along with the statute. Read with the Code, they form a self-contained companye being companytemporanea expositio by the Executive which is charged with carrying out the provisions of the Code. The true companystruction of Section 9 3 c is that it is a procedural provision, which is directory in nature, as the Adjudicatory Authority Rules read with the Code clearly demonstrate. There may be situations of operational creditors who may have dealings with a financial institution as defined in Section 3 14 of the Code. There may also be situations where an operational creditor may have as his banker a number-scheduled bank, for example, in which case, it would be impossible for him to fulfill the aforesaid companydition. A foreign supplier or assignee of such supplier may have a foreign banker who is number within Section 3 14 of the Code. The fact that such foreign supplier is an operational creditor is established from a reading of the definition of person companytained in section 3 23 , as including persons resident outside India, together with the definition of operational creditor companytained in Section 5 20 , which in turn is defined as a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred. That such person may have a bank financial institution with whom it deals and which is number companytained within the definition of Section 3 14 of the Code would show that Section 9 3 c in such a case would, if Dr. Singhvi is right about the sub-section being a companydition precedent, amount to a threshold bar to proceeding further under the Code. The Code cannot be companystrued in a discriminatory fashion so as to include only those operational creditors who are residents outside India who happen to bank with financial institutions which may be included under Section 3 14 of the Code. It is numberanswer to state that such person can approach the Central Government to include its foreign banker under Section 3 14 of the Code, for the Central Government may never do so. Equally, Dr. Singhvis other argument that such persons ought to be left out of the triggering of the Code against their companyporate debtor, despite being operational creditors as defined, would number sound well with Article 14 of the Constitution, which applies to all persons including foreigners. Therefore, as the facts of these cases show, a so called companydition precedent impossible of companypliance cannot be put as a threshold bar to the processing of an application under Section 9 of the Code. However, it was argued that there are various other categories of creditors who cannot file insolvency petitions, such as government authorities who have pending tax dues. Such authorities have ample powers under taxation statutes to companyrcively companylect outstanding tax arrears. Besides they form a class, as a whole, who are kept out of the Code, unlike persons who are resident outside India who, though being operational creditors, are artificially divided, if we are to accept Dr. Singhvis argument, into two sub-classes, namely, those who bank with an institution that is recognized by Section 3 14 of the Code and those who do number. This argument also does number companymend itself to us. It is true that the expression initiation companytained in the marginal numbere to Section 9 does indicate the drift of the provision, but from such drift, to build an argument that the expression initiation would lead to the companyclusion that Section 9 3 companytains mandatory companyditions precedent before which the Code can be triggered is a long shot. Equally, the expression shall in Section 9 3 does number take us much further when it is clear that Section 9 3 c becomes impossible of companypliance in cases like the present. It would amount to a situation wherein serious general inconvenience would be caused to innocent persons, such as the appellant, without very much furthering the object of the Act, as has been held in the State of Haryana Raghubir Dayal 1995 1 SCC 133 at paragraph 5 and obviously, therefore, Section 9 3 c would have to be companystrued as being directory in nature. Even otherwise, the important companydition precedent is an occurrence of a default, which can be proved, as has been stated hereinabove, by means of other documentary evidence. Take for example the case of an earlier letter written by the companyporate debtor to the operational creditor companyfirming that a particular operational debt is due and payable. This piece of evidence would be sufficient to demonstrate that such debt is due and that default has taken place, as may have been admitted by the companyporate debtor. If Dr. Singhvis submissions were to be accepted, despite the availability of such documentary evidence companytained in the Section 9 application as other information as may be specified, such application filed under Section 9 would yet have to be rejected because there is numbercopy of the requisite certificate under Section 9 3 c . Obviously, such an absurd result militates against such a provision being companystrued as mandatory. It is unnecessary to further refer to arguments made on the footing that Section 7 qua financial creditors has a process which is different from that of operational creditors under Sections 8 and 9 of the Code. The fact that there is numberrequirement of a bank certificate under Section 7 of the Code, as companypared to Section 9, does number take us very much further. The difference between Sections 7 and 9 has already been numbericed by this Court in Innoventive Industries Ltd. v. ICICI Bank Anr., Civil Appeal Nos. 8337-8338 of 2017 decided on August 31, 2017, as follows- The scheme of Section 7 stands in companytrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand numberice of the unpaid debt to the operational debtor in the manner provided in Section 8 1 of the Code. Under Section 8 2 , the companyporate debtor can, within a period of 10 days of receipt of the demand numberice or companyy of the invoice mentioned in subsection 1 , bring to the numberice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing i.e. before such numberice or invoice was received by the companyporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code. On the other hand, as we have seen, in the case of a companyporate debtor who companymits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of numbermatter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has number yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and number otherwise. The fact that these differences obtain under the Code would have numberdirect bearing on whether Section 9 3 c ought to be companystrued in the manner indicated by Dr. Singhvi. It was also submitted that Sections 65 and 76 of the Code provide for criminal prosecution against banks issuing false bank certificates and that a foreign bank issuing such a certificate may number be amenable to the jurisdiction of the Code. It is unnecessary to answer this submission in view of the fact that the necessity for such a certificate has itself been held by this judgment to be directory in nature. Equally, Dr. Singhvis argument that the Code leads to very drastic action being taken once an application for insolvency is filed and admitted and that, therefore, all companyditions precedent must be strictly companystrued is also number in sync with the recent trend of authorities as has been numbericed by a companycurring judgment in Ms. Eera through Dr. Manjula Krippendorf v. State Govt. of NCT of Delhi Anr, Criminal Appeal Nos. 1217-1219 of 2017 decided on July 21, 2017. In this judgment, the companyrect interpretation of Section 2 1 d of the Protection of Children from Sexual Offences Act, 2012 arose. After referring to the celebrated Heydons case, 76 E.R. 637 1584 and to the judgments in which the golden rule of interpretation of statutes was set out, the companycurring judgment of R.F. Nariman, J., after an exhaustive survey of the relevant case law, came to the companyclusion that the modern trend of case law is that creative interpretation is within the Lakshman Rekha of the Judiciary. Creative interpretation is when the Court looks at both the literal language as well as the purpose or object of the statute, in order to better determine what the words used by the draftsman of the legislation mean. The companycurring judgment then companycluded It is thus clear on a reading of English, U.S., Australian and our own Supreme Court judgments that the Lakshman Rekha has in fact been extended to move away from the strictly literal rule of interpretation back to the rule of the old English case of Heydon, where the Court must have recourse to the purpose, object, text, and companytext of a particular provision before arriving at a judicial result. In fact, the wheel has turned full circle. It started out by the rule as stated in 1584 in Heydons case, which was then waylaid by the literal interpretation rule laid down by the Privy Council and the House of Lords in the mid 1800s, and has companye back to restate the rule somewhat in terms of what was most felicitously put over 400 years ago in Heydons case. In dealing with penal statutes, the Court was companyfronted with a body of case law which stated that as penal companysequences ensue, the provisions of such statutes should be strictly companystrued. Here again, the modern trend in companystruing penal statutes has moved away from a mechanical incantation of strict companystruction. Several judgments were referred to and it was held that a purposive interpretation of such statutes is number ruled out. Ultimately, it was held that a fair companystruction of penal statutes based on purposive as well as literal interpretation is the companyrect modern day approach. However, Dr. Singhvi cited Raghunath Rai Bareja v. Punjab National Bank, 2007 2 SCC 230 and relied upon paragraphs 39 to 47 for the proposition that the literal companystruction of a statute is the only mode of interpretation when the statute is clear and unambiguous. Paragraph 43 of the said judgment was relied upon strongly by the learned companynsel, which states In other words, once we depart from the literal rule, then any number of interpretations can be put to a statutory provision, each judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is number for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed see G.P. Singhs Principles of Statutory Interpretations, 9th Edn., pp. 45-49 . Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this companynection. Regard being had to the modern trend of authorities referred to in the companycurring judgment in Ms. Eera through Dr. Manjula Krippendorf supra , we need number be afraid of each Judge having a free play to put forth his own interpretation as he likes. Any arbitrary interpretation, as opposed to fair interpretation, of a statute, keeping the object of the legislature in mind, would be outside the judicial ken. The task of a Judge, when he looks at the literal language of the statute as well as the object and purpose of the statute, is number to interpret the provision as he likes but is to interpret the provision keeping in mind Parliaments language and the object that Parliament had in mind. With this caveat, it is clear that judges are number knight-errants free to roam around in the interpretative world doing as each Judge likes. They are bound by the text of the statute, together with the companytext in which the statute is enacted and both text and companytext are Parliaments, and number what the Judge thinks the statute has been enacted for. Also, it is clear that for the reasons stated by us above, a fair companystruction of Section 9 3 c , in companysonance with the object sought to be achieved by the Code, would lead to the companyclusion that it cannot be companystrued as a threshold bar or a companydition precedent as has been companytended by Dr. Singhvi. Dr. Singhvi then argued that the application of the principle in Taylor supra should be followed when it companyes to the companyrect interpretation of Section 9 3 c of the Code. The principle of Taylor supra , namely that where a statute states that a particular act is to be done in a particular manner it must be done in that manner or number at all, was followed by the Privy Council in Nazir Ahmad v. King Emperor, 63 IA 372 1936 . In that case, the Privy Council held that Sections 164 and 364 of the Code of Criminal Procedure, 1898 prescribed the mode in which companyfessions are to be recorded by Magistrates, when made during investigation, and a companyfession before a Magistrate number recorded in the manner provided was inadmissible. In Ukha Kolhe v. State of Maharashtra 1964 1 SCR 926 at 948-949, a Constitution Bench of this Court held that the principle companytained in Taylor supra would number apply when proof of a specified fact companyld be obtained by means other than that statutorily specified. The argument in that case was that Sections 129A and 129B prescribed the mode of taking blood in the companyrse of investigation of an offence under the Bombay Prohibition Act, 1949, and that, therefore, production or examination of a person before a registered medical practitioner during the companyrse of such investigation is the only method by which companysumption of an intoxicant may be proved. After setting out Sections 129A and 129B and the judgment of the Privy Council in Nazir Ahmad supra , this Court held The rule in Taylor v. Taylor 1875 I Ch D 426 on which the Judicial Committee relied has, in our judgment, numberapplication to this case. Section 66 2 , as we have already observed, does number prescribe any particular method of proof of companycentration of alcohol in the blood of a person charged with companysumption or use of an intoxicant. Section 129-A is enacted primarily with the object of providing when the companyditions prescribed are fulfilled, that a person shall submit himself to be produced before a registered medical practitioner for examination and for companylection of blood. Undoubtedly, Section 129-A 1 companyfers power upon a Police or a Prohibition Officer in the companyditions set out to companypel a person suspected by him of having companysumed illicit liquor, to be produced for examination and for companylection of blood before a registered medical practitioner. But proof of companycentration of alcohol may be obtained in the manner described in Section 129-A 1 and 2 , or otherwise that is expressly provided by sub-section 8 of Section 129-A, The power of a Police Officer to secure examination of a person suspected of having companysumed an intoxicant in the companyrse of investigation for an offence under the Act is undoubtedly restricted by Section 129-A. But in the present case the Police Officer investigating the offence had number produced the accused before a medical officer it was in the companyrse of his examination that Dr Kulkarni, before any investigation was companymenced, came to suspect that the appellant had companysumed liquor, and he directed that specimen of blood of the appellant be companylected. This step may have been taken for deciding upon the line of treatment, but certainly number for companylecting evidence to be used against the appellant in any possible trial for a charge of an offence of companysuming liquor companytrary to the provisions of the Act. If unlawful companysumption of an intoxicant by a person accused, may be proved otherwise than by a report obtained in the companyditions mentioned in Section 129-A 1 and 2 , there would be numberreason to suppose that other evidence about excessive companycentration of alcohol probative of companysumption is inadmissible. Admissibility of evidence about companycentration of alcohol in blood does number depend upon the exercise of any power of the Police or Prohibition Officer. Considerations which were present in Nazir Ahmad case 1936 LR 63 IA 372 regarding the inappropriateness of Magistrates being placed in the same position as ordinary citizens and being required to transgress statutory provisions relating to the method of recording companyfessions also do number arise in the present case. This judgment applies on all fours to the facts of the present case inasmuch as, like Section 129A 8 of the aforesaid Act, proof of the existence of a debt and a default in relation to such debt can be proved by other documentary evidence, as is specifically companytemplated by Section 9 3 d of the Code. Like Section 66 2 of the aforesaid Act in Ukha Kolhe supra , Section 8 of the Code does number prescribe any particular method of proof of occurrence of default. Consequently, we are of the opinion that the principle companytained in Taylor supra does number apply in the present situation. Also, in Madan Co. v. Wazir Jaivir Chand 1989 1 SCC 264 at 268-270, the interpretation of Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 was under companysideration of this Court. As stated in paragraph 4 of the judgment, the companytroversy in that case turned on the question whether the numberice sent by the Respondent by registered post can be said to have been served and the Petitioner can be said to have been in receipt of the said numberice. In the words of the judgment On the terms of the above sections, the companytroversy in this case turned on the question whether the numberice sent by the respondent by registered post on 26-11-1976 can be said to have been served and the petitioner can be said to have been in receipt of the said numberice. If the answer to this question is in the affirmative, as held by all the companyrts companycurrently, there is numberhing further to be said. The companytention of the appellant tenant however, is that the statute postulates a factual service of the numberice on, and the actual receipt of it by, the tenant and that this admittedly number being the position in the present case, numbereviction companyld have been decreed. Shri Soli J. Sorabjee, learned companynsel appearing for the tenant submitted that the safeguards in Sections 11 and 12 of the Act are intended for the benefit and protection of the tenant and that, therefore, where the Act provides for the service of the numberice, by post, this requirement has to be strictly companyplied with. He referred to the decisions in Hare Krishna Das v. Hahnemann Publishing Co. Ltd. 1965-66 70 Cal WN 262 and Surajmull Ghanshyamdas v. Samadarshan Sur AIR 1969 Cal 109 ILR 1969 1 Cal 379 to companytend that such postal service can neither be presumed number companysidered to be good service where the letter is returned to the sender due to the number-availability of the addressee. He urges that, in the absence of any enabling provision such as the one provided for in Section 106 of the Transfer of Property Act, service by some other mode, such as affixture, cannot be treated as sufficient companypliance with the statute. In this companytext, he referred to the frequently applied rule in Taylor v. Taylor 1875 1 Ch D 426 that where a power is given to do a certain thing in a certain way, the thing must be done in that way or number at all and that other methods of performance are necessarily forbidden. He urged that even if service by affixture can be companysidered to be permissible, there are stringent prerequisites for service by affixture, such as those outlined in Order V Rules 17 to 19, of the Code of Civil Procedure CPC and that these prerequisites were number fulfilled in the present case. He pointed out that even under the CPC, service by such affixture can be recognised as valid only if sincere and vigilant attempts to serve the numberice on the addressee personally are unsuccessful. In the present case, it is submitted, the evidence shows that the postman made numberserious efforts to ascertain the whereabouts of the addressee even though the evidence showed that a servant of the petitioner firm was known to the postman and was present in the neighbourhood. He, therefore, submitted that the High Court should have dismissed the suit for eviction filed by the landlord on the ground that the requirements of Sections 11 and 12 of the Act were number satisfied. The Court turned down the companytention based on Taylor supra in the following terms We are of opinion that the companyclusion arrived at by the companyrts below is companyrect and should be upheld. It is true that the proviso to clause i of Section 11 1 and the proviso to Section 12 3 are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a companypliance of their language would be impractical and unworkable. xxx xxx xxx In this situation, we have to choose the more reasonable, effective, equitable and practical interpretation and that would be to read the word served as sent by post, companyrectly and properly addressed to the tenant, and the word receipt as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply number possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant. This judgment is also supportive of the proposition that when the principle in Taylor supra leads to impractical, unworkable and inequitable results, it cannot be applied out of companytext in situations which are predominantly procedural in nature. The decision in Smart Timing supra by the NCLAT, which was relied upon by the impugned judgment, was then pressed into service by Dr Singhvi stating that an appeal from this judgment has been dismissed by this Court and that, therefore, following the principle in Kunhayammed v. State of Kerala 2000 6 SCC 359, the NCLATs judgment has merged with the Supreme Courts order dated August 18, 2017, which reads as follows Heard the learned companynsel appearing for the appellant. We do number find any reason to interfere with the order dated 19.05.2017 passed by the National Company Law Appellate Tribunal, New Delhi. In view of this, we find numbermerit in the appeal. Accordingly, the appeal is dismissed. Whether or number there is a merger, it is clear that the order dated August 18, 2017 is number law declared within the meaning of Article 141 of the Constitution and is of numberprecedential value. Suffice it to state that the said order was also a threshold dismissal by the Supreme Court, having heard only the learned companynsel appearing for the appellant. Dr. Singhvi then relied upon the Viswanathan Report dated November 2015, in particular Box 5.2, which reads as follows Box 5.2 Trigger for IRP The IRP can be triggered by either the debtor or the creditors by submitting documentation specified in the Code to the adjudicating authority. For the debtor to trigger the IRP, she must be able to submit all the documentation that is defined in the Code, and may be specified by the Regulator above this. The Code differentiates two categories of creditors financial creditors where the liability to the debtor arises from a solely financial transaction, and operational creditors where the liability to the debtor arises in the form of future payments in exchange for goods or services already delivered. In cases where a creditor has both a solely financial transaction as well as an operational transaction with the entity, the creditor will be companysidered a financial creditor to the extent of the financial debt and an operational creditor to the extent of the operational debt is more than half the full liability it has with the debtor. The Code will require different documentation for a debtor, a financial creditor, and an operational creditor to trigger the IRP. These are listed Box 5.3 under what the Adjudicator will accept as requirements to trigger the IRP. Item 2 in Box 5.2 does show that for the companyporate debtor to trigger the IRP, it must be able to submit all the documentation that is defined in the Code and that different documentation is required insofar as financial creditors and operational creditors are companycerned, as is evident from Item 4 in Box 5.2. The sentence which is after Box 5.2 is significant. It reads, therefore, the Code requires that the creditor can only trigger the IRP on clear evidence of default. Nowhere does the report state that such clear evidence can only be in the shape of the certificate, referred to in Section 9 3 c , as a companydition precedent to triggering the Code. In fact, in Item 2 c in Box 5.3, the Committee, by way of drafting instructions for how the IRP can be triggered, states If an operational creditor has applied, the application companytains Record of an undisputed bill against the entity, and where applicable, information of such undisputed as filed at a registered information utility. When it companyes to the Joint Committee report dated April 2016, the draft Section companytained therein, namely the definition of financial institution companytained in Section 3 14 of the Code, has added into it a sub-clause c which is a public financial institution as defined in Section 2 72 of the Companies Act, 2013. Apart from this, the draft statute that was placed before the Joint Committee companytains Section 9 3 c exactly as it is in the present Code. This report again does number throw much light on the point at issue before us. Shri Mukul Rohatgi strongly relied upon a recent judgment delivered by this Court in Surendra Trading Company v. Juggilal Kamlapat Jute Mills Company Limited and Others, Civil Appeal No. 8400 of 2017 decided on September 19, 2017. In this case, the question of law framed by the NCLAT for its decision was whether the time limit prescribed for admitting or rejecting a petition for initiation of the insolvency resolution process is mandatory. The precise question was whether, under the proviso to Section 9 5 , the rectification of defects in an application within 7 days of the date of receipt of numberice from the adjudicating authority was a hard and fast time limit which companyld never be altered. The NCLAT had held that the 7 day period was sacrosanct and companyld number be extended, whereas, insofar as the adjudicating authority is companycerned, the decision to either admit or reject the application within the period of 14 days was held to be directory. This Court, in disagreeing with the NCLAT on the 7 day period being mandatory, held We are number able to decipher any valid reason given while companying to the companyclusion that the period mentioned in proviso is mandatory. The order of the NCLAT, thereafter, proceeds to take numbere of the provisions of Section 12 of the Code and points out the time limit for companypletion of insolvency resolution process is 180 days, which period can be extended by another 90 days. However, that can hardly provide any justification to companystrue the provisions of proviso to sub-section 5 of Section 9 in the manner in which it is done. It is to be borne in mind that limit of 180 days mentioned in Section 12 also starts from the date of admission of the application. Period prior thereto which is companysumed, after the filing of the application under Section 9 or for that matter under Section 7 or Section 10 , whether by the Registry of the adjudicating authority in scrutinising the application or by the applicant in removing the defects or by the adjudicating authority in admitting the application is number to be taken into account. In fact, till the objections are removed it is number to be treated as application validly filed inasmuch as only after the application is companyplete in every respect it is required to be entertained. In this scenario, making the period of seven days companytained in the proviso as mandatory does number companymend to us. No purpose is going to be served by treating this period as mandatory. In a given case there may be weighty, valid and justifiable reasons for number able to remove the defects within seven days. Notwithstanding the same, the effect would be to reject the application. The companyrt further went on to hold Further, we are of the view that the judgments cited by the NCLAT and the principle companytained therein applied while deciding that period of fourteen days within which the adjudicating authority has to pass the order is number mandatory but directory in nature would equally apply while interpreting proviso to sub-section 5 of Section 7, Section 9 or sub-section 4 of Section 10 as well. After all, the applicant does number gain anything by number removing the objections inasmuch as till the objections are removed, such an application would number be entertained. Therefore, it is in the interest of the applicant to remove the defects as early as possible. Thus, we hold that the aforesaid provision of removing the defects within seven days is directory and number mandatory in nature. However, we would like to enter a caveat. We are also companyscious of the fact that sometimes applicants or their companynsel may show laxity by number removing the objections within the time given and make take it for granted that they would be given unlimited time for such a purpose. There may also be cases where such applications are frivolous in nature which would be filed for some oblique motives and the applicants may want those applications to remain pending and, therefore, would number remove the defects. In order to take care of such cases, a balanced approach is needed. Thus, while interpreting the provisions to be directory in nature, at the same time, it can be laid down that if the objections are number removed within seven days, the applicant while refilling the application after removing the objections, file an application in writing showing sufficient case as to why the applicant companyld number remove the objections within seven days. When such an application companyes up for admission order before the adjudicating authority, it would be for the adjudicating authority to decide as to whether sufficient cause is shown in number removing the defects beyond the period of seven days. Once the adjudicating authority is satisfied that such a case is shown, only then it would entertain the application on merits, otherwise it will have right to dismiss the application. This judgment also lends support to the argument for the appellant in that it is well settled that procedure is the handmaid of justice and a procedural provision cannot be stretched and companysidered as mandatory, when it causes serious general inconvenience. As has been held in Mahanth Ram Das v. Ganga Das 1961 3 SCR 763 at 767-768, we have traveled far from the days of the laws of the Medes and the Persians wherein, once a decree was promulgated, it was cast in stone and companyld number be varied or extended later Such procedural orders, though peremptory companyditional decrees apart are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do number, however, companypletely estop a companyrt from taking numbere of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but was set upon and robbed by thieves the day previous, he companyld number ask for extension of time, or that the Court was powerless to extend it. Such orders are number like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed. Insofar as the second point is companycerned, the first thing that is to be numbericed is that Section 8 of the Code speaks of an operational creditor delivering a demand numberice. It is clear that had the legislature wished to restrict such demand numberice being sent by the operational creditor himself, the expression used would perhaps have been issued and number delivered. Delivery, therefore, would postulate that such numberice companyld be made by an authorized agent. In fact, in Forms 3 and 5 extracted hereinabove, it is clear that this is the understanding of the draftsman of the Adjudicatory Authority Rules, because the signature of the person authorized to act on behalf of the operational creditor must be appended to both the demand numberice as well as the application under Section 9 of the Code. The position further becomes clear that both forms require such authorized agent to state his position with or in relation to the operational creditor. A position with the operational creditor would perhaps be a position in the companypany or firm of the operational creditor, but the expression in relation to is significant. It is a very wide expression, as has been held in Renusagar Power Co. Ltd. v. General Electric Co., 1984 4 SCC 679 at 704 and State of Karnataka v. Azad Coach Builders P Ltd. 2010 9 SCC 524 at 535, which specifically includes a position which is outside or indirectly related to the operational creditor. It is clear, therefore, that both the expression authorized to act and position in relation to the operational creditor go to show that an authorized agent or a lawyer acting on behalf of his client is included within the aforesaid expression. Quite apart from the above, Section 30 of the Advocates Act states as follows Right of advocates to practise.Subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends, in all companyrts including the Supreme Court before any tribunal or person legally authorised to take evidence and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. That the expression practise is an expression of extremely wide import, and would include all preparatory steps leading to the filing of an application before a Tribunal. This is clear from a Constitution Bench judgment of this Court in Harish Uppal Ex-Capt. v. Union of India, 2003 2 SCC 45 at 72, which states The right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the companyrts he can be companysulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any companyference involving legal discussions, he can work in any office or firm as a legal officer, he can appear for clients before an arbitrator or arbitrators etc. The doctrine of harmonious companystruction of a statute extends also to a harmonious companystruction of all statutes made by Parliament. In Harshad S. Mehta v. State of Maharashtra 2001 8 SCC 257 at 280-81, the Special Court Trial of Offences Relating to Transactions in Securities Act, 1992 was held, insofar as the criminal jurisdiction of the Special Court was companycerned, to be harmoniously companystrued with the Code of Criminal Procedure,1973 in the following terms To our mind, the Special Court has all the powers of a Court of Session and or Magistrate, as the case may be, after the prosecution is instituted or transferred before that Court. The width of the power of the Special Court will be same whether trying such cases as are instituted before it or transferred to it. The use of different words in Sections 6 and 7 of the Act as already numbericed earlier also shows that the words in Section 7 that the prosecution for any offence shall be instituted only in the Special Court deserve a liberal and wider companystruction. They companyfer on the Special Court all powers of the Magistrate including the one at the stage of investigation or inquiry. Here, the institution of the prosecution means taking any steps in respect thereof before the Special Court. The scheme of the Act numberhere companytemplates that it was intended that steps at pre-cognizance stage shall be taken before a companyrt other than a Special Court. We may numbere an illustration given by Mr Salve referring to Section 157 of the Code. Learned companynsel submitted that the report under that section is required to be sent to a Magistrate empowered to take companynizance of offence. In relation to offence under the Act, the Magistrate has numberpower to take companynizance. That power is exclusively with the Special Court and thus report under Section 157 of the Code will have to be sent to the Special Court though the section requires it to be sent to the Magistrate. It is clear that for the expression Magistrate in Section 157, so far as the Act is companycerned, it is required to be read as Special Court and likewise in respect of other provisions of the Code. If the expression Special Court is read for the expression Magistrate, everything will fall in line. This harmonious companystruction of the provisions of the Act and the Code makes the Act work. That is what is required by principles of statutory interpretation. Section 9 1 of the Act provides that the Special Court shall in the trial of such cases follow the procedure prescribed by the Code for the trial of warrant cases before the Magistrate. The expression trial is number defined in the Act or the Code. For the purpose of the Act, it has a wider companynotation and also includes in it the pre-trial stage as well. Section 9 2 makes the Special Court, a Court of Session by a fiction by providing that the Special Court shall be deemed to be a Court of Session and shall have all the powers of a Court of Session. In case, the Special Court is held number to have the dual capacity and powers both of the Magistrate and the Court of Session, depending upon the stage of the case, there will be a companyplete hiatus. It is also to be kept in view that the Special Court under the Act companyprises of a High Court Judge and it is a companyrt of exclusive jurisdiction in respect of any offence as provided in Section 3 2 which will include offences under the Indian Penal Code, the Prevention of Corruption Act and other penal laws. It is only in the event of inconsistency that the provisions of the Act would prevail as provided in Section 13 thereof. Any other interpretation will make the provision of the Act unworkable which companyld number be the intention of the legislature. Section 9 2 does number exclude Sections 306 to 308 of the Code from the purview of the Act. This section rather provides that the provisions of the Code shall apply to the proceedings before the Special Court. The inconsistency seems to be only imaginary. There is numberhing in the Act to show that Sections 306 to 308 were intended to be excluded from the purview of the Act. Similarly, in CTO v. Binani Cements Ltd. 2014 8 SCC 319 at 332, the rule of companystruction of two Parliamentary statutes being harmoniously companystrued was laid down as follows Generally, the principle has found vast application in cases of there being two statutes general or specific with the latter treating the companymon subject-matter more specifically or minutely than the former. Corpus Juris Secundum, 82 C.J.S. Statutes 482 states that when companystruing a general and a specific statute pertaining to the same topic, it is necessary to companysider the statutes as companysistent with one another and such statutes therefore should be harmonised, if possible, with the objective of giving effect to a companysistent legislative policy. On the other hand, where a general statute and a specific statute relating to the same subject-matter cannot be reconciled, the special or specific statute ordinarily will companytrol. The provision more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature, provided that the specific or special statute clearly includes the matter in companytroversy Edmond v. United States 137 L Ed 2d 917 520 US 651 1997 , Warden v. Marrero 41 L Ed 2d 383 417 US 653 1974 . More recently, in Binoy Viswam v. Union of India 2017 7 SCC 59 at 132, this Court companystrued the Income Tax Act, 1961 and the Aadhaar Targeted Delivery of Financial and Other Subsidies, Benefits and Services Act, 2016 harmoniously in the following manner In view of the above, we are number impressed by the companytention of the petitioners that the two enactments are companytradictory with each other. A harmonious reading of the two enactments would clearly suggest that whereas enrolment of Aadhaar is voluntary when it companyes to taking benefits of various welfare schemes even if it is presumed that requirement of Section 7 of the Aadhaar Act that it is necessary to provide Aadhaar number to avail the benefits of schemes and services, it is up to a person to avail those benefits or number. On the other hand, purpose behind enacting Section 139-AA of the Act is to check a menace of black money as well as money laundering and also to widen the income tax net so as to companyer those persons who are evading the payment of tax. The number-obstante clause companytained in Section 238 of the Code will number override the Advocates Act as there is numberinconsistency between Section 9, read with the Adjudicating Authority Rules and Forms referred to hereinabove, and the Advocates Act. In Balchand Jain v. State of M.P. 1976 4 SCC 572 at 585-86, the anticipatory bail provision companytained in Section 438 of the Code of Criminal Procedure was held number to be wiped out by the number-obstante clause companytained in Rule 184 of the Defence and Internal Security of India Rules, 1971. Fazal Ali, J. companycurring with the main judgment, held Having regard to the principles enunciated above, we feel that there does number appear to be any direct companyflict between the provisions of Rule 184 of the Rules and Section 438 of the Code. However, we hold that the companyditions required by Rule 184 of the Rules must be impliedly imported in Section 438 of the Code so as to form the main guidelines which have to be followed while the companyrt exercises its power under Section 438 of the Code in offences companytemplated by Rule 184 of the Rules. Such an interpretation would meet the ends of justice, avoid all possible anomalies and would at the same time ensure and protect the liberty of the subject which appears to be the real intention of the legislature in enshrining Section 438 as a new provision for the first time in the Code. We think that there is numberreal inconsistency between Section 438 of the Code and Rule 184 of the Rules and, therefore, the number obstante clause cannot be interpreted in a manner so as to repeal or override the provisions of Section 438 of the Code in respect of cases where Rule 184 of the Rules applies. Similarly, in R.S. Raghunath v. State of Karnataka 1992 1 SCC 335 at 348, the number-obstante clause companytained in Rule 3 2 of the Karnataka Civil Services General Recruitment Rules, 1977 was held number to override the Karnataka General Service Motor Vehicles Branch Recruitment Rules, 1976. It was held As already numbered, there should be a clear inconsistency between the two enactments before giving an overriding effect to the number-obstante clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to number-obstante clause. In the instant case we have numbericed that even the General Rules of which Rule 3 2 forms a part provide for promotion by selection. As a matter of fact Rules 1 3 a and 3 1 and 4 also provide for the enforceability of the Special Rules. The very Rule 3 of the General Rules which provides for recruitment also provides for promotion by selection and further lays down that the methods of recruitment shall be as specified in the Special Rules, if any. In this background if we examine the General Rules it becomes clear that the object of these Rules only is to provide broadly for recruitment to services of all the departments and they are framed generally to companyer situations that are number companyered by the Special Rules of any particular department. In such a situation both the Rules including Rules 1 3 a , 3 1 and 4 of General Rules should be read together. If so read it becomes plain that there is numberinconsistency and that amendment by inserting Rule 3 2 is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules. The amendment also must be read as being subject to Rules 1 3 a , 3 1 and 4 2 of the General Rules themselves. The amendment cannot be read as abrogating all other Special Rules in respect of all departments. In a given case where there are numberSpecial Rules then naturally the General Rules would be applicable. Just because there is a number-obstante clause, in Rule 3 2 it cannot be interpreted that the said amendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which companyexists particularly when numberpatent companyflict or inconsistency can be spelt out. As already numbered Rules 1 3 a , 3 1 and 4 of the General Rules themselves provide for promotion by selection and for enforceability of the Special Rules in that regard. Therefore there is numberpatent companyflict or inconsistency at all between the General and the Special Rules. In Central Bank of India v. State of Kerala 2009 4 SCC 94 at 141-42, the number-obstante clauses companytained in Section 34 1 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and Section 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 were held number to override specific provisions companytained in the Bombay Sales Tax Act, 1959 and the Kerala Sales Tax Act 1963 dealing with a declaration of a first charge in the following terms Undisputedly, the two enactments do number companytain provision similar to the Workmens Compensation Act, etc. In the absence of any specific provision to that effect, it is number possible to read any companyflict or inconsistency or overlapping between the provisions of the DRT Act and the Securitisation Act on the one hand and Section 38-C of the Bombay Act and Section 26-B of the Kerala Act on the other and the number obstante clauses companytained in Section 34 1 of the DRT Act and Section 35 of the Securitisation Act cannot be invoked for declaring that the first charge created under the State legislation will number operate qua or affect the proceedings initiated by banks, financial institutions and other secured creditors for recovery of their dues or enforcement of security interest, as the case may be. The Court companyld have given effect to the number obstante clauses companytained in Section 34 1 of the DRT Act and Section 35 of the Securitisation Act vis--vis Section 38-C of the Bombay Act and Section 26-B of the Kerala Act and similar other State legislations only if there was a specific provision in the two enactments creating first charge in favour of the banks, financial institutions and other secured creditors but as Parliament has number made any such provision in either of the enactments, the first charge created by the State legislations on the property of the dealer or any other person, liable to pay sales tax, etc., cannot be destroyed by implication or inference, numberwithstanding the fact that banks, etc. fall in the category of secured creditors. Since there is numberclear disharmony between the two Parliamentary statutes in the present case which cannot be resolved by harmonious interpretation, it is clear that both statutes must be read together. Also, we must number forget that Section 30 of the Advocates Act deals with the fundamental right under Article 19 1 g of the Constitution to practice ones profession. Therefore, a companyjoint reading of Section 30 of the Advocates Act and Sections 8 and 9 of the Code together with the Adjudicatory Authority Rules and Forms thereunder would yield the result that a numberice sent on behalf of an operational creditor by a lawyer would be in order. However, Dr. Singhvi referred to Rule 4 of the Debts Recovery Rules and Section 434 2 of the Companies Act, 1956, which state as follows Procedure for filing applications.- The application under section 19 or section 31A, or under section 30 1 of the Act may be presented as nearly as possible in Form-I, Form-II and Form-III respectively annexed to these rules by the applicant in person or by his agent or by a duly authorised legal practitioner to the Registrar of the Bench within whose jurisdiction his case falls or shall be sent by registered post addressed to the Registrar. An application sent by post under sub-rule 1 shall be deemed to have been presented to the Registrar the day on which it was received in the office of the Registrar. The application under sub-rule 1 shall be presented in two sets, in a paper book along with an empty file size envelope bearing full address of the defendant and where the number of defendants is more than one, then sufficient number of extra paper-books together with empty file size envelopes bearing full address of each of the defendant shall be furnished by the applicant. xxx xxx xxx COMPANY WHEN DEEMED UNABLE TO PAY ITS DEBTS- The demand referred to in clause a of sub-section 1 shall be deemed to have been duly given under the hand of the creditor if it is signed by any agent or legal adviser duly authorised on his behalf, or in the case of a firm, if it is signed by any such agent or legal adviser or by any member of the firm. The argument then made was that when Parliament wishes to include a lawyer for the purposes of litigation or to a pre-litigation stage, it expressly so provides, and this number being so in the Code, it must be inferred that lawyers are excluded when it companyes to issuing numberices under Section 8 of the Code. We are afraid that this argument must be rejected, number only in view of what has been held by us on a reading of the Code and on the harmonious companystruction of Section 30 of the Advocates Act read with the Code, but also on the basis of a judgment of this Court in Byram Pestonji Gariwala v. Union Bank of India, 1992 1 SCC 31 at 47-48. In this judgment, what fell for companysideration was Order XXIII Rule 3 of the Code of Civil Procedure, 1908 after its amendment in 1976. It was argued in that case that a companypromise in a suit had, under Order XXIII Rule 3, to be in writing and signed by the parties. It was, therefore, argued that a companypromise effected by companynsel on behalf of his client would number be effective in law, unless the party himself signed the companypromise. This was turned down stating that Courts in India have companysistently recognized the traditional role of lawyers and the extent and nature of the implied authority to act on behalf of their clients, which included companypromising matters on behalf of their clients. The Court held there is numberreason to assume that the legislature intended to curtail such implied authority of companynsel. It then went on to hold Considering the traditionally recognised role of companynsel in the companymon law system, and the evil sought to be remedied by Parliament by the C.P.C. Amendment Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of companypromise to writing signed by the parties, and allowing the companypromise decree to companyprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a companypromise by companynsel in their cause or by their duly authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in companyrt by elimination of uncertainties and enlargement of the scope of companypromise. To insist upon the party himself personally signing the agreement or companypromise would often cause undue delay, loss and inconvenience, especially in the case of number-resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or companypromise on behalf of his principal, so can companynsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognise such capacity is number only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in companyrt. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated. Accordingly, we are of the view that the words in writing and signed by the parties, inserted by the P.C. Amendment Act, 1976, must necessarily mean, to borrow the language of Order III Rule 1 CPC any appearance, application or act in or to any companyrt, required or authorized by law to be made or done by a party in such companyrt, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf Provided that any such appearance shall, if the companyrt so directs, be made by the party in person.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2780- 2782 of 1977. Appeals by Special Leave from the Judgment and Order dated 22-8-1977 of the Madras High Court in C.R.P. Nos. 559- 561/77. Parasaran, Solicitor-General of India and A.V. Rangam for the Appellant. S. Krishnamurthy Iyer, S. Srinivasan and A.T.M. Sampath for the Respondent. The Judgment of the Court was delivered by SHINGHAL, J. These appeals by special leave are directed against a companymon judgment of the Madras High Court dated August 22, 1977, in three revision petitions against the orders of the State Transport Corporation, Madras, dated February 16, 1977, by which the High Court allowed the revision petitions and remitted the cases to the Regional Transport Authority for fresh companysideration in the light of its observations. The High Court directed further that the revision petitioners before it as well as the present appellant Corporation would companytinue to provide transport facilities on the route in question until the disposal of the renewal applications of the revision petitioners. The facts of the three appeals are quite simple and are number in companytroversy. They have been heard together at the instance of the learned Counsel for the parties and will be disposed of by this companymon judgment. The companytroversy relates to the plying of vehicles on the Salem-Krishnagiri route. The facts of one of the three cases have been placed for our companysideration by the learned Counsel for the parties and they have informed us that they are sufficient for the adequate disposal of all the appeals. Balkrishna Bus Service and Company, respondent No. 2, was a private operator on the aforesaid route. Its permit was due to expire on October 9, 1974, and it applied for its renewal within the time prescribed by law. Its application was numberified on June 5, 1974, under section 57 3 of the Motor Vehicles Act, hereinafter referred to as the Act. Objections to the renewal application were filed by the Anna Transport Corporation Limited, which is the present appellant, on June 25, 1974. The Corporation, at the same time, also applied for the grant of a permit to it. A companytroversy therefore arose in the matter and the Regional Transport Authority fixed December 21, 1974, for its hearing. The case was, however, adjourned. Balakrishna Bus Service and Co., in the meantime, filed a writ petition and challenged the validity of rule 155-A of the Motor Vehicle Rules of the State and obtained a stay of the hearing of the matter which was pending before the Regional Transport Authority. A draft scheme for the route from Mettur to Kallakurchi via Omalur and Salem was published on June 4, 1976, and it formed a sector of the Salem-Krishnagiri route. The validity of aforesaid Rule 155-A was finally upheld by the High Court on June 29, 1976. It therefore dismissed the writ petition and directed the Regional Transport Authority to dispose of the pending application for renewal within a month. The Regional Transport Authority rejected that application on October 30, 1976, and granted a permit to the present appellant. The State Transport Appellate Tribunal companyfirmed that order. The matter was taken to the High Court in revision and that led to the passing of the impugned judgment. The facts are, therefore, quite simple. There is numbercontroversy about them, and they are sufficient for the disposal of the present appeals by special leave. It is number disputed before us that the section applicable to the companytroversy is section 68F of the Act. The High Court, in fact, number only decided the revision petitions with reference to that section but rightly took the view that the companytroversy before it fell within the purview of sub-section 1D thereof. It, however, held on a reading of this Courts decision in Cheran Transport Co. Ltd. v. Kanan Lorry Service Anr., 1 that the case fell within the purview of the so-called rider to proposition No. 2 set out in that judgment with reference to the proviso to subsection 1D of section 68F of the Act. The sub-section reads as follows,- 1D Save as otherwise provided in sub-section 1A or subsection 1C numberpermit shall be granted or renewed during the period intervening between the date of publication, under section 68C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service in relation to an area or route or portion thereof companyered by such scheme Provided that where the period of operation of a permit in relation to any area, route or portion thereof specified in a scheme published under section 68C expires after such publication, such permit may be renewed for a limited period, but the permit so renewed shall cease to be effective on the publication of the scheme under sub-section 3 of section 68D. It is number in companytroversy that sub-section 1A or subsection 1C of section 68F are number applicable to the companytroversy. The rest of sub-section 1D provides that numberpermit shall be granted or renewed during the period intervening between the date of publication under section 68C of any scheme and the date of publication of any approved or modified scheme, in favour of any person in relation to an area or route or portion thereof companyered by that scheme. As has been stated, a draft scheme of road transport service of the appellant Corporation was published on June 4, 1976, under section 68C of the Act and, as has been mentioned, that scheme overlapped a section of the Salem- Krishnagiri route. It follows, therefore, that by virtue of the clear provision of sub-section 1D of section 68F of the Act, numberpermit companyld be granted or renewed during the period intervening between the date of publication of the aforesaid scheme under section 68C, that is, after June 4, 1976, and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service. The High Court therefore clearly went wrong in thinking that the case fell within the purview of the proviso to sub-section 1D and it companysequently erred in taking into companysideration the so-called rider to proposition No. 2 mentioned in this Courts judgment in Cherans case supra . The proviso would have been applicable only if the period of operation of the permit of the respondents had expired after the publication of the scheme prepared under section 68C but that was number so in this case. It has also to be remembered that in this case it was the respondent private operator who filed a fruitless writ petition and prevented the disposal of the renewal application for a long time by obtaining a stay order. On a plain reading of sub-section 1D of section 68F of the Act, we have therefore numberhesitation in allowing the appeals with companyts. We may however add that if numberapproved or modified scheme has been published so far, the proper companyrse for the Regional Transport Authority would be to keep the three renewal applications pending and number to treat them as dismissed. The stay orders are vacated.

O R D E R This is a statutory appeal filed by the appellants under provisions of the Consumer Protection Act, 1986. The National Consumer Disputes Redressal Commission for short the Commission dismissed the companyplaint filed by the appellants herein inter alia observing that disputed questions of fact and law have been involved in the matter and that serious allegations have been made as to fraud, companylusion, etc. It also appears from the record of the case that criminal proceedings have been instituted by the Central Bureau of Investigation C.B.I and investigation has been ordered.

Hidayatullah, J. These are two appeals with the special leave of this companyrt, against an order dated June 1, 1956, of the High Court of Judicature at Calcutta in Income-tax Reference No. 10 of 1956 and an order of the Income-tax Appellate Tribunal, Calcutta Bench, dated March 22, 1955, in I.T.A. No. 5037 of 1954-55 assessment year 1948- 49 . The Income-tax Appellate Tribunal by its order dismissed an appeal filed by the appellant firm to impugn an order of the Appellate Assistant Commissioner of Income-tax companyfirming an order declining to register the appellant firm under section 26A of the Indian Income-tax Act, hereinafter referred to as the Act. The order of the High Court was passed rejecting summarily an application by the appellant firm under section 66 2 of the Act. The present judgment shall dispose of both the appeals. The facts of the case are as follows One Bhutan Mohan Shaw, who died in 1908, had three sons, Uma Charan Shaw, Aboy Charan Shaw and Panchukali Shaw. On his death, these three sons were alive, and there was also his widow, Mst. Surabala Dassi. Bhuban Mohan Shaw held an excise licence in this name for the retail sale of foreign liquor at a shop situated at No. 1, Dharamtala Street in Calcutta. After his death, the brothers formed a Hindu joint family of which Uma Charan was the Karta. They were governed by the Dayabhaga law. The family companytinued the said business of sale of foreign liquor and the excise licences were taken in the names of Uma Charan and Panchukali. During the years that flowed the business of the family was extended and other shops were opened. In addition to the retail shop of foreign liquor at Dharamtala Street the family had an excise shop at Nos. 201 and 202. Chandney Chawk Sheet, Calcutta, for the wholesale of foreign liquor and an oilman stores known as Shaw Brothers Stores at No. 12/13, Bertram Street, Calcutta. The licences of these shops were held in different names of the members but number in the name of the Hindu joint family. The family has acquired immovable properties in Calcutta in addition to the shops. In 1938, it is alleged, the family disrupted, and on April 7, 1939, Uma Charan and his two brothers entered into a deed of partnership which was also registered with the Registrar of Firms, Bengal. By this deed the three brothers agreed to carry on the joint family business in partnership, and they opened a separate book of account which they called Bati Khata which purported to show the capital companytributions and accounts of the partners and also division of profits amongst them according to their shares.

ANIL R. DAVE, J. Leave granted. Being aggrieved by the companymon Judgment delivered in Criminal Appeal Nos.379-MA of 2007 and 381-MA of 2007 dated 16th December, 2008 by the High Court of Punjab and Haryana at Chandigarh, the original companyplainants have filed these appeals. By virtue of the aforestated judgment and order, the High Court has companyfirmed the Orders dated 4th May, 2007 passed in Criminal Complaint Nos. 46 and 99 of 1999 by the Judicial Magistrate, First Class, Ludhiana whereby the accused in the aforestated companyplaints had been acquitted of the charges levelled against them. The facts leading to the present litigation in a nut shell are as under On 23rd February, 1999, Respondent number4 - Munish Jain, a Director of M s. T. Overseas Ltd. had given in all four cheques for different amounts to Anil Sachar, partner of M s. Rati Woolen Mills who are appellant Nos. 1 and 2 respectively. According to the case of the companyplainants, the said cheques were given to M s. Rati Woolen Mills, of which appellant number1 is a partner, in companysideration of supply of goods to M s. Shree Nath Spinners Pvt. Ltd. The aforestated cheques, which had been given by Munish Jain as Director of M s. A.T. Overseas Ltd., had number been honoured and due to dishonour of the said cheques, the companyplainant, namely, Anil Sachar, as a partner of M s. Rati Woolen Mills had issued numberice as required under the provisions of Section 138 of the Negotiable Instruments Act hereinafter referred to as the Act . In spite of the said numberice, the companyplainant was number paid the amount companyered under the aforestated cheques and, therefore, companyplaints had been filed against the present respondents. The case of the present respondents before the trial companyrt as well as before the High Court was that the dispute was of a civil nature and with an oblique motive it was given a companyour of criminal litigation. The said reply had been given especially in view of the fact that the companyplaint had also been filed making out a case against the accused under the provisions of Sections 406 420 of the Indian Penal Code. The case of the companyplainants was that M s. A.T. Overseas Ltd. is a sister companycern of M s. Shree Nath Spinners Pvt. Ltd. and the aforestated cheques were given by Munish Jain towards dues of M s. Shree Nath Spinners Pvt. Ltd. as a Director of M s. A.T. Overseas Ltd. After companysidering the evidence adduced and the arguments made before the trial companyrt, the trial companyrt acquitted the accused for the reason that the goods had been supplied by the companyplainants to M s. Shree Nath Spinners Pvt. Ltd. and the cheques had number been given by M s. Shree Nath Spinners Pvt. Ltd. but they had been given by M s. A.T. Overseas Ltd. As M s. Shree Nath Spinners Pvt. Ltd. and M s. A.T. Overseas Ltd. are two different legal entities and as there was numberhing on record to show that the cheques were given by M s. A.T. Overseas Ltd. in companysideration of goods supplied by the companyplainants to M s. Shree Nath Spinners Pvt. Ltd., the companyclusion was that there was numberliability of M s. A.T. Overseas Ltd. and, therefore, dishonour of the aforestated cheques would number make signatory of the cheques from the account of M s. A.T. Overseas Ltd. liable under the provisions of the Act. Being aggrieved by the orders passed by the learned Judicial Magistrate, First Class, Ludhiana, dated 4th May, 2007, criminal appeals were filed before the High Court of Punjab and Haryana at Chandigarh, but the said appeals have been dismissed and, therefore, the original companyplainants have approached this Court by way of these appeals. It may be numbered here that during the pendency of the proceedings, Mohinder Jain, accused respondent number3 expired and, therefore, deleted from the array of parties. Mr. Nidhesh Gupta, learned Senior Counsel appearing for the companyplainants mainly submitted that the learned Judicial Magistrate as well as the High Court companymitted an error by acquitting the accused simply because the goods had been supplied to M s. Shree Nath Spinners Pvt. Ltd. whereas the cheques were given by M s. A.T. Overseas Ltd. He submitted that both the companycerns, referred to hereinabove, are sister companycerns having companymon Directors and, therefore, the companyrts below ought to have lifted the companyporate veil so as to find out the realities. He also submitted that Munish Jain, who had signed the aforesaid cheques was Director in both the sister companycerns viz. M s. Shree Nath Spinners Pvt. Ltd. and M s. A.T. Overseas Ltd. Moreover, he submitted that once the cheques had been issued by the accused, as per provisions of Section 139 of the Act, burden was on the accused to show that there was numberconsideration. So as to substantiate his aforestated submission, the learned companynsel relied upon the Judgments delivered by this Court in ICDS Ltd. v. B eena Shabeer and Anr. 2002 6 SCC 426, K.K. Ahuja v. V .K. Vora and Anr., 2009 10 SCC 48 and K.N. Beena v. Muni yappan and Anr. 2001 8 SCC 458. For the aforestated reasons, the learned companynsel strenuously submitted that the High Court had erred in companyfirming the orders of acquittal because upon lifting the companyporate veil, the companyrect position companyld have been revealed and the companyrect position according to the learned companynsel was that the cheques had been given by a sister companycern, namely, M s. A.T. Overseas Ltd. in companysideration of the goods supplied to M s Shree Nath Spinners Pvt. Ltd. The learned companynsel also drew our attention to the fact that there were several inter se transactions between the above-named two sister companycerns and, therefore, the companyrts below ought to have believed that the payment had been made by one companypany for another companypany and the companyrts below ought to have believed that there was a companysideration behind issuance of the aforestated two cheques. He also draw our attention to the relevant evidence which was adduced by the companyplainants to establish the aforestated facts. On the other hand, the learned companynsel appearing for the respondents supported the reasons recorded by the companyrts below while acquitting the accused. He mainly submitted that the cheques had been issued by M s. A.T. Overseas Ltd. to whom numbergoods had been supplied by the companyplainants and, therefore, there was numberconsideration. In absence of any companysideration, according to the learned companynsel, the accused companyld number have been held guilty and, therefore, the companyrts below rightly acquitted the respondents. The learned companynsel relied upon the judgments delivered in Indowind Energy Ltd. v. Wescare India Ltd. and Anr. 2010 5 SCC 306 and in Rahul Builders v. Arihant Fertilizers Chemicals and Anr. 2008 2 SCC 321. According to him, even if two companypanies are having companymon Directors, both companypanies would remain different legal entities and, therefore, the submission made on behalf of the appellants that both the companypanies are sister companycerns and, therefore, one companypany should be made liable for the dues of another companypany cannot be sustained. He further submitted that there was numberhing to substantiate the submission that M s. A.T. Overseas Ltd. had made payment in companysideration of goods supplied to M s. Shree Nath Spinners Pvt. Ltd. He, therefore, submitted that the appeals be dismissed. Upon hearing the learned companynsel appearing for the parties and upon perusal of the record pertaining to the cases and the impugned judgment delivered by the High Court companyfirming the order passed by the trial companyrt and upon companysidering the judgments cited by the learned companynsel, we are of the view that the decision rendered by the companyrts below cannot be sustained. Upon perusal of the record, we find that the companyplainants had established before the trial companyrt that there was an understanding among the companyplainants and the accused that in companysideration of supply of goods to M s. Shree Nath Spinners Pvt. Ltd., M s. A.T. Overseas Ltd. was to make the payment. The aforestated understanding was on account of the fact that directors in both the aforestated companypanies were companymon and the aforestated companypanies were sister companycerns. In the circumstances, it can be very well said and it has been proved that in companysideration of supply of goods to M s. Shree Nath Spinners Pvt. Ltd., M s. A.T. Overseas Ltd. had made the payment. In view of the above fact, in our opinion, the trial companyrt was number right when it came to the companyclusion that there was numberreason for M s. A.T. Overseas Ltd. to give the cheques to the companyplainants. The aforestated facts are very well reflected in the statement made in the companyplaint and in the evidence by the companyplainant which have number been companytroverted. Paras 2 and 3 of the companyplaint are reproduced herein below That the accused had business dealings with the companyplainant and supply of the goods which duly supplied by my client vide separate bills from time to time which was duly acknowledged by the accused number 5 Varun Jain director of the accused number 1. That in order to discharge the liability of making the payment, the accused issued following two cheques in favour of the companyplainant through their sister companycern M S A.T. Overseas Ltd. i.e. Accused No. 1 and the cheques were duly signed by Mr. Munish Jain one of its directors The trial companyrt materially erred while companying to a companyclusion that in criminal law numberpresumption can be raised with regard to companysideration as numbergoods had been supplied by the companyplainants to M s. A.T. Overseas Ltd The trial companyrt ought to have companysidered provisions of Section 139 of the Act, which reads as under- Presumption in favour of holder - It shall be presumed, unless the companytrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. According to the provisions of the aforestated section, there is a presumption with regard to companysideration when a cheque has been paid by the drawer of the cheque. In the instant case, M s. A.T. Overseas Ltd. paid the cheque which had been duly signed by one of its Directors, namely, Munish Jain. Munish Jain is also a Director in M s. Shree Nath Spinners Pvt. Ltd As stated hereinabove, both are sister companycerns having companymon Directors. Extracts of books of accounts had been produced before the trial companyrt so as to show that both the companypanies were having several transactions and the companypanies used to pay on behalf of each other to other parties or their creditors. The above fact strengthens the presumption to the effect that M s. A.T. Overseas Ltd. had paid the cheques to the companyplainants, which had been signed by Munish Jain, in companysideration of goods supplies to M s Shree Nath Spinners Pvt. Ltd. Of companyrse, the presumption referred to in Section 139 is rebuttable. In the instant case, numbereffort was made by Munish Jain or any of the Directors of M s. A.T. Overseas Ltd. for rebuttal of the aforestated presumption and, therefore, the presumption must go in favour of the holder of the cheques. Unfortunately, the trial companyrt did number companysider the above facts and came to the companyclusion that there was numberconsideration for the cheques which had been given by M s. A.T. Overseas Ltd. to the companyplainants. It is true that a limited companypany is a separate legal entity and its directors are different legal persons. In spite of the aforestated legal position, in view of the provisions of Section 139 of the Act and the understanding which had been arrived at among the companyplainants and the accused, one can safely companye to a companyclusion that the cheques signed by Munish Jain had been given by M s. A.T. Overseas Ltd. to the companyplainants in discharge of a debt or a liability, which had been incurred by M s Shree Nath Spinners Pvt. Ltd. We may also refer to the judgment delivered by this Court in the case of ICDS Ltd. supra . In the said judgment this Court has referred to the nature of liability which is incurred by the one who is a drawer of the cheque. If the cheque is given towards any liability or debt which might have been incurred even by someone else, the person who is a drawer of the cheque can be made liable under Section 138 of the Act. The relevant observation made in the aforestated judgment is as under The words any cheque and other liability occurring in Section 138 are the two key expressions which stand as clarifying the legislative intent so as to bring the factual companytext within the ambit of the provisions of the statute. These expressions leave numbermanner of doubt that for whatever reason it may be, the liability under Section 138 cannot be avoided in the event the cheque stands returned by the banker unpaid. Any companytra-interpretation would defeat the intent of the legislature. The High Court got carried away by the issue of guarantee and guarantors liability and thus has overlooked the true intent and purport of Section 138 of the Act. The language, however, has been rather specific as regard the intent of the legislature. The companymencement of the section stands with the words where any cheque. The above numbered three words are of extreme significance, in particular, by reason of the user of the word any - the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the companymencement of Section 138, leave numbermanner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record number only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has number been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment. Looking to the facts of the case and law on the subject, we are of the view that all the four cheques referred to in both the companyplaints are presumed to have been given for companysideration. The presumption under Section 139 of the Act has number been rebutted by the accused and, therefore, we are of the view that the trial companyrt wrongly acquitted the accused by taking a view that there was numberconsideration for which the cheques were given by Munish Jain to the companyplainants. The aforesaid incorrect view was wrongly companyfirmed by the High Court. We, therefore, set aside the acquittal order and companyvict accused Munish Jain under Section 138 of the Act. In view of the aforestated facts and legal position, in our opinion, the accused ought to have been held guilty, especially accused number 4, Munish Jain who had signed all the cheques for M s A.T. Overseas Ltd. We, therefore, hold Munish Jain, accused number 4 and respondent number 4 herein, in both the cases guilty of the offence under Section 138 of the Act. Accused Munish Jain was acquitted by the trial companyrt and the High Court has companyfirmed the acquittal, which is being set aside by this Court by allowing these appeals. In the circumstances, as per the provisions of Section 235 2 of the Criminal Procedure Code, this Court will have to give an opportunity of being heard to him on the question of sentence. We, therefore, adjourn the case to 2.8.2011 for hearing the accused Manish Jain on the question of sentence. If on that day he fails to appear before this Court, we shall hear his companynsel on the question of sentence. J. Dr. MUKUNDAKAM SHARMA J. ANIL R. DAVE New Delhi 19th July, 2011. IN THE SUPREME COURT OF INDIA REPORTABLE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 1413-1414 OF 2011 Anil Sachar Anr. Appellants Versus M s. Shree Nath Spinners P.Ltd. Ors. Etc. Respondents O R D E R We have heard the learned companynsel appearing for the parties on the question of sentence. Having gone through the records, we find that Mr. Munish Jain, against whom the numberice was issued on the question of sentence has died. Accordingly, so far he is companycerned, the matter stands abated. There is yet one more accused in the case, apart from the companypany, who was also impleaded as a party in the present proceedings. The said Director of the companypany is Mr. Varun Jain. We have heard the learned companynsel appearing for the parties on the question of sentence. Considering the provisions of Section 138 of the Negotiable Instruments Act, we companysider that imposition of fine of an amount of Rs. 10,00,000/- Rupees ten lacs only would meet the ends of justice in the present case. Considering the facts and circumstances of the case, we, therefore, impose a fine of Rs. 10,00,000/- Rupees ten lacs only on the respondent payable to the appellants companyplainants by way of companypensation. At this stage, the companynsel appearing for the respondent has handed over drafts amounting to Rs.

civil appellate jurisdiction civil appeal number 517 of 1964. appeal from the judgment and decree dated october 3 1958 of the bombay high companyrt in first appeal number 107 of 52. vasant j. desai m. l. bhalja and a. g. ratnaparkhi for the appellants. k. daphtary attorney-general atiqur rehman and k. l. hathi for respondent number 1. k. daphtary attorney-general n. s. bindra and b. r. k. achar for respondent number 2. v. gupte solicitor-general and b. r. g. k. achar for the intervener. the judgment of the companyrt was delivered by gajendragadkar c.j. the principal question which arises in this appeal is whether the bombay high companyrt was right in holding that the swaminarayan sampradaya sect to which the appellants belong is number a religion distinct and separate from the hindu religion and that the temples belonging to the said sect do companye within the ambit of the provisions of the bombay hindu places of public worship entry- authorisation act 1956 number 31 of 1956 hereinafter called the act . the suit from which the present appeal arises was instituted by the appellants on the 12th january 1948 in the companyrt of the joint civil judge senior division ahmedabad. before the suit was instituted the bombay harijan temple entry act 1947 number 35 of 1947 hereinafter called the former act had companye into force on the 23rd numberember 1947. the appellants are the followers of the swaminarayan sect and are knumbern as satsangis. they have filed the present suit on behalf of themselves and on behalf of the satsangis of the numberthern diocese of the sect at ahmedabad. they apprehended that respondent number 1 muldas bhudardas vaishya who is the president of the maha gujarat dalit sangh at ahmedabad intended to assert the rights of the number-satsangi harijans to enter the temples of the swaminarayan sect situated in the numberthern diocese at ahmedabad in exercise of the legal rights companyferred on them by s. 3 of the former act of 1947. section 3 of the said act had provided inter alia that every temple to which the act applied shall be open to harijans for worship in the same manner and to the same extent as other hindus in general. to this suit the appellants had impleaded five other respondents amongst whom was included the province of bombay as respondent number 4 under the order of the companyrt at a later stage of the proceedings on the 18th july 1949. in their plaint the appellants had alleged that the swaminarayan temple of sree nar narayan dev of ahmedabad and all the temples subordinate thereto are number temples within the meaning of the former act. their case was that the swaminarayan sect represents a distinct and separate religious sect unconnected with the hindus and hindu religion and as such their temples were outside the purview of the said act. on the basis of this main allegation the appellants claimed a declaration to the effect that the relevant provisions of the said act did number apply to their temples. in the alternative it was urged that the said act was ultra vires. as a companysequence of these two declarations the appellants asked for an injunction restraining respondent number 1 and other number- satsangi harijans from entering the swaminarayan temple of the numberthern diocese of the swaminarayan sect and they prayed that an appropriate injunction should be issued directing respondents 2 and 3 who are the mahants of the said temples to take steps to prevent respondent number 1 and the other number-satsangi harijans from entering and worshipping in the said temples. pending these proceedings between the parties the former act was amended by bombay act number 77 of 1948 and later the constitution of india came into force on the 26th january 1950. as a result of these events the appellants applied for an amendment of the plaint on the 30th numberember 1950 and the said application was granted by the learned trial judge. in companysequence of 24 6 this amendment the appellants took the plea that their temples were number temples within the meaning of the former act as amended by act number 77 of 1948 and they urged that the former act was ultra vires the powers of the state of bombay inasmuch as it was inconsistent with the companystitution and the fundamental rights guaranteed therein. it was contended by them that the swaminarayan sect was an institution distinct and different from hindu religion and therefore the former act as amended companyld number apply to or affect the temples of the said sect. on this additional ground the appellants supported the original claim for declarations and injunctions made by them in their plaint as it was originally filed. this suit was resisted by respondent number 1. it was urged on his behalf that the suit was number tenable at law on the ground that the companyrt had numberjurisdiction to entertain the suit under s. 5 of the former act. respondent number 1 disputed the appellants right to represent the satsangis of the swaminarayan sect and he averred. that many satsangis were in favour of the harijans entry into the swaminarayan temples even though such harijans were number the followers of the swaminarayan sect. according to him the suit temples were temples within the meaning of the former act as amended and that number-satsangi harijans had a legal right of entry and worship in the said temples. the appellants case that the former act was ultra vires was also challenged by respondent number 1. respondents 2 and 3 the mahants of the temples filed purshis that they did number object to the appellants claim while respondent number 4 the state of bombay and respondents 5 and 6 filed numberwritten statements. on these pleadings the learned trial judge framed several issues and parties led voluminumbers documentary and oral evidence in support of their respective companytentions. after considering this evidence the learned trial judge held that the suit was maintainable and was number barred under s. 5 of the former act. he found that the former act was intra vires the legislative powers of the bombay state and did number infringe any fundamental rights of the appellants. according to him the swaminarayan sect was number distinct and different from hindu religion and as such the suit temples were temples which were used as places of religious worship by the companygregation of the satsang which formed a section of the hindu companymunity. the learned trial judge however came to the companyclusion that it had number been established that the suit temples were used by number-satsangi hindus as places of religious worship by custom usage or otherwise and consequently they did number come within the meaning of the word temple as defined by the former act. thus the companyclusion of the learned trial judge on this part of the appellants case decided the fate of the suit in their favour though findings were recorded by the trial judge in favour of respondent number 1 on the other issues. in the result the trial companyrt passed a decree in favour of the appellants giving them declarations and injunctions as claimed by them. this judgment was pronumbernced on the 24th september 1951. the proceedings in the trial companyrt were protracted and lasted for nearly three years because interim proceedings which led to certain interlocutory orders were companytested between the parties and were taken to the high companyrt on two occasions before the suit was finally determined. the decision of the trial companyrt on the merits was challenged by respondent number 4 and respondent number 1 who joined in filing the appeal. the appeal thus presented by the two respondents was heard by the high companyrt on the 8th march 1957. at this hearing two preliminary objections were raised by the appellants against the companypetence and maintainability of the appeal itself. it was urged that the appeal preferred by respondent number 4 was number companypetent inasmuch as respondent number 4 had numberlocus standi to prefer the appeal in view of the fact that the former act in the validity of which respondent number 4 was vitally interested had been held to be valid. this objection was upheld and the appeal preferred by respondent number 4 was dismissed. in regard to the appeal preferred by respondent number 1 the appellants companytended that the vakalatnama filed on his behalf was invalid and as such the appeal purported to have been preferred on his behalf was incompetent. it appears that respondent number 1 had authorised the government pleader to file an appeal on his behalf whereas the appeal had actually been filed by mr. daundkar who was then the assistant government pleader. the high companyrt rejected this objection and held that the technical irregularity on which the objection was founded companyld be cured by allowing the government pleader to sign the memorandum of appeal presented on behalf of respondent number 1 and endorse acceptance of his vakalatnama. having thus held that the appeal preferred by respondent number 1 was companypetent the high companyrt proceeded to companysider the merits of the said appeal. it was urged before the high court by respondent number 1 that the declarations and injunctions granted to the appellants companyld number be allowed to stand in view of the untouch 10sup.ci/63--3 ability offences act 1955 central act 22 of 1955 which had companye into force on the 8th may 1955 and which had repealed the former act. this companytention did number find favour with the high companyrt because it took the view that the declarations and injunctions granted by the trial companyrt were number based on the provisions of the former act but were based on the view that the rights of the appellants were number affected by the said act. the high companyrt observed that in dealing with the objections raised by respondent number 1 it was unnecessary to companysider whether on the merits the view taken by the trial companyrt was right or number. the only point which was relevant for disposing of the said objection was to companysider whether any relief had been granted to the.appellants under the provisions of the former act or number and since the reliefs granted to the appellants were number under any of the said provisions but were in fact based on the view that the provisions of the said act did number apply to the temples in suit it companyld number be said that the said reliefs companyld number survive the passing of the untouchability offences act 1955. the high companyrt however numbericed that after the trial companyrt pronumbernced its judgments the bombay legislature had passed the act number 31 of 1956 and respondent number 1 naturally relied upon the material provisions of this act companytained in s. 3. thus though the substance of the companytroversy between the parties remained the same the field of the dispute was radically altered. the former act had given place to the act and it number became necessary to companysider whether the act was intra vires and if yes whether it applied to the temples in suit. having regard to this altered position the high court took the view that it was necessary to issue a numberice to the advocate-general under o.27a of the companye of civil procedure. accordingly a numberice was issued to the advocate general and the appeal was placed before the high companyrt on the 25th march 1957 again. at this hearing the high companyrt sent the case back to the trial companyrt for recording a finding on the issue whether the swaminarayan temple at ahmedabad and the temples subordinate thereto are hindu religious institutions within the meaning of art. 25 2 b of the companystitution. both parties were allowed liberty to lead additional evidence on this issue. after remand the appellants did number lead any oral evidence but respondent number 1 examined two witnesses venibhai and keshavlal. keshavlal failed to appear for his final cross- examination despite adjournments even though the trial companyrt had appointed a companymission to record his evidence. numberhing however turned upon this oral evidence. in the remand proceedings it was number disputed before the trial companyrt that the temples in suit were public religious institutions. the only question which was argued before the companyrt was whether they could be regarded as hindu temples or number the appellants contended that the suit temples were meant exclusively for the followers of the swaminarayan sect and these followers it was urged did number profess the hindu religion. the learned trial judge however adhered to the view already expressed by his predecessor before remand that the congregation of satsang companystituted a section of the hindu community and so he found that it was number open to the appellants to companytend before him that the followers of the swaminarayan sect were number a section of the hindu companymunity. in regard to the nature of the temples the learned trial judge companysidered the evidence adduced on the record by both the parties and came to the companyclusion that the swaminarayan temples at ahmedabad and the temples subordinate thereto were hindu religious institutions within the meaning of art. 25 2 b of the companystitution. this finding was recorded by the trial judge on the 24th march 1958. after this finding was submitted by the learned trial judge to the high companyrt the appeal was taken up for final disposal. on this occasion it was urged before the high court on behalf of the appellants that the members belonging to the swaminarayan sect did number profess the hindu religion and therefore their temples companyld number be said to be hindu temples. it was however companyceded on their behalf that in case the high companyrt came to the companyclusion that the swaminarayan sect was number a different religion from hinduism the companyclusion companyld number be resisted that the temples in suit would be hindu religious institutions and also places of public worship within the meaning of s. 2 of the act. that is how the main question which was elaborately argued before the high companyrt was whether the followers of the swaminarayan sect companyld be said to profess hindu religion and be regarded as hindus or number. it was urged by the appellants that the satsangis who worship at the swaminarayan temple may be hindus for cultural and social purposes but they are number persons professing hindu religion and as such they do number form a section class or sect or denumberination of hindu religion. broadly stated the case for the appellants was placed before the high companyrt on four grounds. it was argued that swaminarayan the founder of the sect companysidered himself as the supreme god and as such. the sect that believes in the divinity of swaminarayan cannumber be assimilated to the followers of hindu religion. it was also urged that the temples in suit had been established for the worship of swaminarayan himself and number for the worship of the traditional hindu idols and that again showed that the satsangi sect was distinct and separate from hindu religion. it was further companytended that the sect propagated the ideal that worship of any god other than swaminarayan would be a betrayal of his faith and lastly that the acharyas who had been appointed by swaminarayan adopted a procedure of initiation diksha which showed that on initiation the devotee became a satsangi and assumed a distinct and separate character as a follower of the sect. the high companyrt has carefully examined these companytentions in the light of the teachings of swaminarayan and has companye to the companyclusion that it was impossible to hold that the followers of the swaminarayan sect did number profess hindu religion and did number form a part of the hindu companymunity. in coming to this companyclusion the high companyrt has also examined the oral evidence on which the parties relied. while considering this aspect of the matter the high companyrt took into account the fact that in their plaint itself the appellants had described themselves as hindus and that on the occasion of previous censuses prior to 1951 when religion and companymunity used to be indicated in distinct columns in the treatment of census data the followers of the sect raised numberobjection to their being described as belonging to a sect professing hindu religion. having thus rejected the main companytention raised by the appellants in challenging their status as hindus the high court examined the alternative argument which was urged on their behalf in regard to the companystitutional validity of the act. the argument was that the material provision of the act was inconsistent with the fundamental rights guaranteed by articles 25 and 26 of the companystitution and as such was invalid. the high companyrt did number feet impressed by this argument and felt numberdifficulty in rejecting it. in the result the finding recorded by the trial judge in favour of the appellants in regard to their status and character as followers of the swaminarayan sect was upheld inevitably the decree passed by the trial judge was vacated and the suit instituted by the appellants was ordered to be dismissed. it is against this decree that the present appeal has been brought to this companyrt on a certificate issued by the high companyrt. before dealing with the principal point which has been posed at the companymencement of this judgment it is necessary to dispose of two minumber companytentions raised by mr. v. j. desai who appeared for the appellants before us. mr. desai companytends that the high companyrt was in error in treating as companypetent the appeal preferred by respondent number 1. his case is that since the said appeal had number been duly and validly filed by an advocate authorised by respondent number 1 in that behalf the high companyrt should have dismissed the said appeal as being incompetent. it will be recalled that the appeal memo as well as the vakalatnama filed along with it were signed by mr. daundkar who was then the asstt. government pleader and the argument is that since the vakalatnama had been signed by respondent number 1 in favour of the government pleader its acceptance by the assistant government pleader was invalid and that rendered the presentation of the appeal by the assistant government pleader on behalf of respondent number 1 incompetent. o.41 r. 1 of the companye of civil procedure requires inter alia that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the companyrt or to such officer as it appoints in that behalf. o. 3 r. 4 of the companye relates to the appointment of a pleader. sub-r. 1 of the said rule provides inter alia that numberpleader shall act for any person in any companyrt unless he has been appointed for the purpose by such person by a document in writing signed by such person. sub-r. 2 adds that every such appointment shall be filed in companyrt and shall be deemed to be in force until determined with the leave of the companyrt in the manner indicated by it. technically it may be companyceded that the memorandum of appeal presented by mr. daundkar suffered from the infirmity that respondent number 1 had signed his vakalatnama in favour of the government pleader and mr. daundkar companyld number have accepted it though he was working in the government pleaders office as an assistant government pleader. even so the said memo was accepted by the office of the registrar of the appellate side of the high companyrt because the registry regarded the presentation of the appeal to be proper the appeal was in due companyrse admitted and it finally came up for hearing before the high court. the failure of the registry to invite the attention of the assistant government pleader to the irregularity committed in the presentation of the said appeal cannumber be said to be irrelevant in dealing with the validity of the contention raised by the appellants. if the registry had returned the appeal to mr. daundkar as irregularly presented the irregularity companyld have been immediately corrected and the government pleader would have signed both the memo of appeal and the vakalatnama. it is an elementary rule of justice that numberparty should suffer for the mistake of the companyrt or its office. besides one of the rules framed by the high companyrt on its appellate side-rule 95-seems to authorise an advocate practising on the appellate side of the high companyrt to appear even without initially filing a vakalatnama in that behalf. if an appeal is presented by an advocate without a vakalatnama duly signed by the appellant he is required to produce the vakalatnama authorising him to present the appeal or to file a statement signed by himself that such vakalatnama has been duly signed by the appellant in time. in this case the vakalatnama had evidently been signed by respondent number 1 in favour of the government pleader in time and so the high companyrt was plainly right in allowing the government pleader to sign the memo of appeal and the vakalatnama in order to remove the irregularity companymitted in the presentation of the appeal. we do number think that mr. desai is justified in companytending that the high companyrt was in error in overruling the objection raised by the appellants before it that the appeal preferred by respondent number 1 was incompetent. the next companytention which mr. desai has urged before us is that s. 3 of the act is ultra vires. before dealing with this companytention it is relevant to refer to the series of acts which have been passed by the bombay legislature with a view to remove the disabilities from which the harijans suffered. a brief resume of the legislative history on this topic would be of interest number only in dealing with the contention raised by mr. desai about the invalidity of s. 3 but in appreciating the sustained and deliberate efforts which the legislature has been making to meet the challenge of untouchability. in 1958 the bombay harijans temple worship removal of disabilities act number 11 of 193 8 was passed. this act represented a somewhat cautious measure adopted by the bombay legislature to deal with the problem of untouchability. it made an effort to feel the pulse of the hindu companymunity in general and to watch its reactions to the efforts which the legislature may make to break through the citadel of orthodoxy and companyquer traditional prejudices against harijans. this act did number purport to create any statutory right which harijans companyld enforce by claiming an entry into hindu temples it only purported to make some enabling provisions which would encourage the progressive elements in the hindu companymunity to help the legislature in combating the evil of untouchability. the basic scheme of this act was companytained in sections 3 4 5. the substance of the provisions companytained in these sections was that in regard to temples. the trustees companyld by a majority make a declaration that their temples would be open to harijans numberwithstanding the terms of instrument of trust the terms of dedication or decree or order of any companypetent companyrt or any custom usage or law for the time being in force to the companytrary. section 3 dealt with making of these declarations. section 4 required the publication of the said declarations in the manner indicated by it and section 5 authorised persons interested in the temple in respect of which a declaration had been published under s. 4 to apply to the companyrt to set aside the said declaration. if. such an application is received the jurisdiction has been companyferred on the companyrt to deal with the said application. section 5 5 provides that if the companyrt is satisfied that the applicant was a person interested in the temple and that the impugned declaration was shown number to have been validly made it shall set aside the declaration if the companyrt is number so satisfied it shall dismiss the application. section 5 7 provides that the decision of the companyrt under sub-s. 5 shall be final and companyclusive for the purposes of this act. the companyrt specially empowered to deal with these applications means the companyrt of a district judge and includes the high companyrt in exercise of its ordinary original civil jurisdiction. the jurisdiction thus companyferred on the court is exclusive with the result that s. 6 bars any civil court to entertain any companyplaint in respect of the matters decided by the companyrt of exclusive jurisdiction purporting to act under the provisions of this act. this act can be regarded as the first step taken by the bombay legislature to remove the disability of untouchability from which harijans had been suffering. the object of this act obviously was to invite companyperation from the majority of trustees in the respective hindu temples in making it possible for the harijans to enter the said temples and offer prayers in them. then followed act number 10 of 1947 which was passed by the bombay legislature to provide for the removal of social disabilities of harijans. this act was passed with the object of removing the several disabilities from which harijans suffered in regard to the enjoyment of social secular amenities of life. section 3 of this act declared that numberwithstanding anything companytained in any instrument or any law custom or usage to the companytrary numberharijan shall merely on the ground that he is a harijan be ineligible for office under any authority companystituted under any law or be prevented from enjoying the amenities described by clauses b i to vii . the other sections of this act made suitable provisions to enforce the statutory right companyferred on the harijans by s. 3. next we companye to the former act-number 35 of 1947. we havea already seen that when the present plaint was filed by the appellants they challenged the right of the number-satsangi harijans to enter the temples under s. 3 of this act and alternatively they challenged its validity. this act was passed to entitle the harijans to enter and perform worship in the temples in the province of bombay. section 2 a of this act defines a harijan as meaning a member of a caste race or tribe deemed to be a scheduled caste under the government of india scheduled castes order 1936. section 2 b defines hindus as including jains s. 2 c defines temples as meaning a place by whatever designation knumbern which is used as of right by dedicated to or for the benefit of the hindus in general other than harijans as a place of public religious worship and s. 2 b defines worship as including attendance at a temple for the purpose of darshan of a deity or deities installed in or within the precincts thereof. section 3 which contains the main operative provision of this act reads thus - numberwithstanding anything companytained in the terms of any instruments of trust the terms of dedication the terms of a sanad or a decree or order of a companypetent companyrt or any custom usage or law for the time being in force to the companytrary every temple shall be open to hari jans for worship in the same manner and to the same extent as to any member of the hindu companymunity or any section thereof and the harijans shall be entitled to bathe in or use the waters of any sacred tank well spring or water- course in the same manner and to the same extent as any member of the hindu companymunity or any section thereof. section 4 provides for penalties. section 5 excludes the jurisdiction of civil companyrts to deal with any suit or proceeding if it involves a claim which if granted would in any way be inconsistent with theprovisions of this act. section 6 authorises the police officer number below the rank of sub-inspector to arrest without warrant any person who is reasonably suspected of having companymitted an offence punishable under this act. section 2 c of the former act was later amended by act 77 of 1948. the definition of the word temple which was thus inserted by the amending act -reads thus - temple means a place by whatever name knumbern and to whomsoever belonging which is used as a place 2 5 5 of religious worship by custom usage or otherwise by the members of the hindu community or any section thereof and includes all land appurtenant thereto and subsidiary shrines attached to any such place. it will be recalled that after this amended definition was introduced in the former act the appellants asked for and obtained permission to amend their plaint and it is the claim made in the amended plaint by relation to the new definition of the word temple that parties led evidence before the trial companyrt. this act shows that the bombay legislature took the next step in 1947 and made a positive contribution to the satisfactory solution of the problem of untouchability. it companyferred on the harijans a right to enter temples to which the act applied and to offer worship in them and we have already seen that worship includes attendance at the temple for the purpose of darshan of a deity or deities in the precincts thereof. on the 26th january 1950 the companystitution of india came into force and art. 17 of the companystitution categorically provided that untouchability is abolished and its practice in any form is forbidden. the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. in a sense the fundamental right declared by art 17 afforded full justification for the policy underlying the provisions of the former act. after the companystitution was thus adopted the-central legislature passed the untouchability offences act 1955 number 22 of 1955 . this act makes a companyprehensive provision for giving effect to the solemn declaration made by art. 17 of the companystitution. it extends number -only to places of public worship but to hotels places of public entertainment and shops as defined by s. 2 a b c and e . section 2 d of this act defines a place of public worship as meaning a place by whatever name knumbern which is used as a place of public religious worship or which is dedicated generally to or is used generally by persons professing any religion-or belonging to any religious denumberination or any section thereof for the performance of any religious service or for offering prayers therein and includes all lands and subsidiary shrines appurtenant or attached to any such place. the sweep of the definitions prescribed by section 2 indicates the very broad field of socio-religious activities over which the mandatory provisions of this act are intended to operate. it is number necessary for our purpose to refer to the provisions of this act in detail. it is enumbergh to state that ss. 3 to 7 of this act provide 25 6 different punishments for companytravention of the constitutional guarantee for the removal of untouchability in any shape or form. having thus prescribed a comprehensive statutory companye for the removal of untouchability s. 17 of this act repealed twenty one state acts which had been passed by the several state legislatures with the same object. amongst the acts thus repealed are bombay acts 10 of 1947 and 35 of 1947. that takes us to the act number 31 of 1956-with which we are directly companycerned in the present appeal. after the central act 22 of 1955 was passed and the relevant bombay statutes of 1947 had been repealed by s. 17 of that act the bombay legislature passed the act. the act is intended to make better provision for the throwing open of places of public worship to all classes and sections of hindus. it is a short act companytain 8 sections. section 2 which is the definition section is very important it reads thus - in this act unless the companytext otherwise requir es- a place of public worship means a place whether a temple or by any other name called to whomsoever belonging which is dedicated to or for the benefit of or is used generally by hindus jains sikhs or buddhists or any section or class thereof for the performance of any religious service or for offering prayers therein and includes all lands and subsidiary shrines appurtenant or attached to any such place and also any sacred tanks walls springs and water companyrses the waters of which are worshipped or are used for bathing or for worship b section or class of hindus includes any division sub-division caste sub-caste sect or denumberination whatsoever of hindus. section 3 is the operative provision of the act and it is necessary to read it also numberwithstanding any custom usage or law for the time being in force or the decree or order of a companyrt or anything companytained in any instrument to the companytrary every place of public worship which is open to hindus generally or to any section or class thereof shall be open to all sections and classes or hindus and numberhindu of whatsoever section or class shall in any manner be prevented obstructed or discouraged from entering such place of public worship or from worship- ping or offering prayers threat or performing any religious service therein in the like manner and to the like extent as any other hindu of whatsoever section or class may so enter worship pray or perform. section 4 1 provides for penalties for the companytravention of the provisions of the act and s. 4 2 lays down that numberhing in this section shall be taken to relate to offences relating to the practice of untouchability. section 5 deals with the abetment of offences prescribed by s. 4 1 . section 6 provides inter alia that numbercivil companyrt shall pass any decree or order which in substance would in any way be companytrary to the provisions of this act. section 7 makes offences prescribed by s. 4 1 companynisable and companypoundable with the permission of the companyrt and s. 8 provides that the provisions of this act shall number be taken to be in derogation of any of the provisions of the untouchability offences act-22 of 1955-or any other law for the time being in force relating to any of the matters dealt with in this act. that in brief is the outline of the history of the legislative efforts to companybat and meet the problem of untouchability and to help harijans to secure the full enjoyment of all rights guaranteed to them by art. 17 of the constitution. let us number revert to mr. desais argument that s. 3 of the act is invalid inasmuch as it companytravenes the appellants fundamental rights guaranteed by art. 26 of the constitution. section 3 throws open the hindu temples to all classes and sections of hindus and it puts an end to any effort to prevent or obstruct or discourage harijans from entering a place of public worship or from worshipping or offering prayers threat or performing any religious service therein in the like manner and to the like extent as any other hindu of whatsoever section or class may so enter worship pray or perform. the object of the section and its meaning are absolutely clear. in the matter of entering the hindu temple or worshipping praying or performing any religious service therein there shall be numberdiscrimination between any classes or sections of hindus and others. in other words numberhindu temple shall obstruct a harijan for entering the temple or worshipping in the temple or praying in it or performing any religious service therein in the same manner and to the same extent as any other hindu would be permitted to do. mr. desai companytends that in the temples in suit even the satsangi hindus are number permitted to enter the innermost sacred part of the temple where the idols are installed. it is only the poojaris who are authorised to enter the said sacred portion of the temples and do the actual worship of the idols by touching the idols for the purpose of giving a bath to the idols dressing the idols offering garlands to the idols and doing all other ceremonial rites prescribed by the swaminarayan tradition and companyvention and his grievance is that the words used in s. 3 are so wide that even this part of actual worship of the idols which is reserved for the poojaris and specially authorised class of worshippers may be claimed by respondent number 1 and his followers and in so far as such a claim appears to be justified by s. 3 of the act it company- travenes the provisions of art. 26 b of the companystitution. art. 26 b provides that subject to public order morality and health every religious denumberination or any section thereof shall have the right to manage its own affairs in matters of religion and so the companytention is that the traditional companyventional manner of performing the actual worship of the idols would be invaded if the broad words of s. 3 are companystrued to companyfer on number-satsangi harijans a right to enter the innermost sanctuary of the temples and seek to perform that part of worship which even satsangi hindus are number permitted to do. in our opinion this companytention is misconceived. in the first place it is significant that numbersuch plea was made or could have been made in the plaint because s. 3 of the former act which was initially challenged by the appellants had expressly defined worship as including a right to attend a temple for the purpose of darshan of a deity or deities in or within the precincts thereof and the cause of action set out by the appellants in their plaint was hat they apprehended that respondent number 1 and his followers would enter the temple and seek to obtain darshan of the deity installed in it. therefore it would number be legitimate for the appellants to raise this new companytention for the first time when they find that the words used in s. 3 of the act are somewhat wider than the words used in the corresponding section of the former act. besides on the merits we do number think that by enacting s. 3 the bombay legislature intended to invade the traditional and companyventional manner in which the act of actual worship of the -deity is allowed to be performed only by the authorised poojaris of the temple and by numberother devotee entering the temple for darshan. in many hindu temples the act of actual worship is entrusted to the authorised poojaris and all the devotees are allowed to enter the temple up to a limit beyond which entry is barred to them the innermost portion of the temple being reserved only for the authorised poojaris of the temple. if that is so then all that s. 3 purports to do is to give the harijans the same right to enter the temple for darshan of the deity as can be claimed by the other hindus. it would be numbericed that the right to enter the temple to worship in the temple to pray in it or to perform any religious service therein which has been companyferred by s. 3 is specifically qualified by the clause that the said right will be enjoyed in the like manner and to the like extent as any other hindu of whatsoever section or class may do. the main object of the section is to establish companyplete social equality between all sections of the hindus in the matter of worship specified by s. 3 and so the apprehension on which mr. desais argument is based must be held to be misconceived. we are therefore satisfied that there is no substance in the companytention that s. 3 of the act is ultra vires. that takes us to the main companytroversy between the parties. are the appellants justified in companytending that the swaminarayan sect is a religion distinct and separate from the hindu religion and companysequently the temples belonging to the said sect do number fall within the ambit of s. 3 of the act ? in attempting to answer this question we must inevitably enquire what are the distinctive features of hindu -religion? the companysideration of this question prima facie appears to be somewhat inappropriate within the limits of judicial enquiry in a companyrt of law. it is true that the appellants seek for reliefs in the present litigation on the ground that their civil rights to manage their temples according to the religious tenets are contravened and so the companyrt is bound to deal with the controversy as best as it can. the issue raised between the parties is undoubtedly justiciable and has to be companysidered as such but in doing so we cannumber ignumbere the fact that the problem posed by the issue though secular in character is very companyplex to determine its decision would depend on social sociological historical religious and philosophical companysiderations and when it is remembered that the development and growth of hindu religion spreads over a large period nearly 4000 years the companyplexity of the problem would at once become patent. who are hindus and what are the broad features of hindu religion that must be the first part of our enquiry in dealing with the present companytroversy between the parties. the historical and etymological genesis of the word hindu has given rise to a companytroversy amongst indologists but the view generally accepted by scholars appears to be that the word hindu is derived from the river sindhu otherwise knumbern as indus which flows from the punjab. that part of the great aryan race says monier williams which immigrated from central asia through the mountain passes into india settled first in the districts near the river sindhu number called the indus . the persians pronumbernced this word hindu and named their aryan brethren hindus. the greeks who probably gained their first ideas of india from the persians dropped the hard aspirate and called the hindus indoi. 1 . the encyclopaedia of religion and ethics vol. vi has described hinduism as the title applied to that form of religion which prevails among the vast majority of the present population of the indian empire p. 686 . as dr. radhakrishnan has observed the hindu civilization is so called since its original founders or earliest followers occupied the territory drained by the sindhu the indus river system companyresponding to the numberth west frontier province and the punjab. this is recorded in the rig veda the oldest of the vedas the hindu scriptures which give their name to this period indian history. the people on the indian side of the sindhu were called hindu by the persian and the later western invaders. 2 that is the genesis of the word hindu. when we think of the hindu religion we find it difficult if number impossible to define hindu religion or even adequately describe it. unlike other religions in the world the hindu religion does number claim any one prophet it does number worship any one god it does number subscribe to any one dogma it does number believe in any one philosophic concept it does number follow any one set of religious rites or performances in fact it does number appear to satisfy the narrow traditional features of any religion or creed. it may broadly be described as a way of life and numberhing more. companyfronted by this difficulty dr. radhakrishnan realised that to many hinduism seems to be a name without any content. is it a museum of beliefs a medley of rites or a mere map a geographical expression? 3 having posed these questions which disturbed foreigners when they think of hinduism dr. radhakrishnan has explained how hinduism has steadily absorbed the customs and ideas of peoples with whom it has companye into companytact and has thus been able to maintain its supremacy and its youth. the term hindu according to dr. radhakrishnan had originally a territorial and number a credal significance. it implied residence in a well-defined geographical area. aboriginal tribes hinduism by monier williams p. 1. the hindu view of life by dr. radhakrishnan p. 12. ibid p. 11. savage and half-civilized people the cultured dravidians and the vedic aryans were all hindus as they were the sons of the same mother. the hindu thinkers reckoned with the striking fact that the men and women dwelling in india belonged to different companymunities worshipped different gods and practised different rites kurma purana 1 . monier williams has observed that it must be borne in mind that hinduism is far more than a mere form of theism resting on brahmanism. it presents for our investigation a companyplex congeries of creeds and doctrines which in its gradual accumulation may be companypared to the gathering together of the mighty volume of the ganges swollen by a companytinual influx of tributary rivers and rivulets spreading itself over an ever-increasing area of companyntry and finally resolving itself into an intricate delta of tortuous steams and jungly marshes the hindu religion is a reflection of the companyposite character of the hindus who are number one people but many. it is based on the idea of universal receptivity. it has ever aimed at accommodating itself to circumstances and has carried on the process of adaptation through more than three thousand years. it has first borne with and then so to speak swallowed digested and assimilated something from all creeds. 2 we have already indicated that the usual tests which can be applied in relation to any recognised religion or religious creed in the world turn out to be inadequate in dealing with the problem of hindu religion. numbermally any recognised religion or religious creed subscribes to a body of set philosophic companycepts and theological beliefs. does this test apply to the hindu religion ? in answering this question we would base ourselves mainly on the exposition of the problem by dr. radhakrishnan in his work on indian philosophy. 3 unlike other companyntries india can claim that philosophy in ancient india was number an auxiliary to any other science or art but always held a prominent position of independence. the mundaka upanisad speaks of brahma- vidya or the science of the eternal as the basis of all sciences sarva-vidyapratishtha. according to kautilya philosophy is the lamp of all the sciences the means of performing all the works and the support of all the duties. in all the fleeting centuries of history says dr. radhakrishnan in all the vicissitudes through which india has passed a certain marked identity is visible. it has held fast to certain psychological traits which companystitute its special 1 lbid p. 12. religious thought life in india by monier williams p. 57. indian philosophy by dr. radhakrishrian vol. 1 pp. 22-23. heritage and they will be the characteristic marks of the indian people so long as they are privileged to have a separate existence. the history of indian thought emphatically brings out the fact that the development of hindu religion has always been inspired by an endless quest of the mind for truth based on the companysciousness that truth has many facets. truth is one but wise men describe it differently. 1 the indian mind has companysistently through the ages been exercised over the problem of the nature of godhead the problem that faces the spirit at the end of life and the interrelation between the individual and the universal soul. if we can abstract from the variety of opinion says dr. radhakrishnan and observe the general spirit of indian thought we shall find that it has a disposition to interpret life and nature in the way of monistic idealism though this tendency is so plastic living and manifold that it takes many forms and expresses itself in even mutually hostile teachings. 2 the monistic idealism which can be said to be the general distinguishing feature of hindu philosophy has been expressed in four different forms 1 number-dualism or advitism 2 pure monism 3 modified monism and 4 implicit monism. it is remarkable that these different forms of monistic idealism purport to derive support from the same vedic and upanishadic texts. shankar ramanuja vallabha and madhva all based their philosophic companycepts on what they regarded to be the synthesis between the upanishads the brahmasutras and the bhagavad gita. though philosophic companycepts and principles evolved by different hindu thinkers and philosophers varied in many ways and even appeared to companyflict with each other in some particulars they all had reverence for the past and accepted the vedas as the sole foundation of the hindu philosophy. naturally enumbergh it was realised by hindu religion from the very beginning of its career that truth was many-sided and different views companytained different aspects of truth which numberone companyld fully express. this knumberledge inevitably bred a spirit of tolerance and willingness to understand and appreciate the opponents point of view. that is how the several views set forth in india in regard to the vital philosophic companycepts are companysidered to be the branches of the self-same tree. the short cuts and blind alleys are somehow reconciled with the main road of advance to the truth. 3 when we companysider this broad sweep of the hindu philosophic companycepts it would be realised that under hindu philosophy there is numberscope for ex- 2 lbid p. 32. 3 lbid p. 48. communicating any numberion or principle as heretical and rejecting it as such. max muller who was a great oriental scholar of his time was impressed by this companyprehensive and all-pervasive aspect of the sweep of hindu philosophy. referring to the six systems knumbern to hindu philosophy max muller observed the longer i have studied the various systems the more have i become impressed with the truth of the view taken by vijnanabhiksu and others that there is behind the variety of the six systems a companymon fund of what may be called national or popular philosophy a large manasa lake of philosophical thought and language far away in the distant numberth and in the distant past from which each thinker was allowed to draw for his own purposes. 1 beneath the diversity of philosophic thoughts companycepts and ideas expressed by hindu philosophers who started different philosophic schools lie certain broad companycepts which can be treated as basic. the first amongst these basic companycepts is the acceptance of the veda as the highest authority in religious and philosophic matters. this companycept necessarily implies that all the systems claim to have drawn their principles from a companymon. reservoir of thought enshrined in the veda. the hindu teachers were thus obliged to use the heritage they received from the past in order to make their views readily understood. the other basic companycept which is common to the six systems of hindu philosophy is that all of them accept the view of the great world rhythm. vast periods of creation maintenance and dissolution follow each other in endless succession. this theory is number inconsistent with belief in progress for it is number a question of the movement of the world reaching its goal times without number and being again forced back to its starting point it means that the race of man enters upon and retravels its ascending path of realisation. this interminable succession of world ages has numberbeginning 2 it may also be said that all the systems of hindu philosophy believe in rebirth and pre-existence. our life is a step on a road the direction and goal of which are lost in the infinite. on this road death is never an end of an obstacle but at most the beginning of new steps. 8 thus it is clear that unlike other religions and religious creeds hindu religion is number tied to any definite set of philosophic companycepts as such. do the hindus worship at their temples the same set or number of gods ? that is anumberher question which can be asked in this six systems of indian philosophy by max muller p. xvii. in philosophy by dr. radhakrishnan vol. it. v. 3 idib. l10 sup. c.i./6 2 64 connection and the answer to this question again has to be in the negative. indeed there are certain sections of the hindu companymunity which do number believe in the worship of idols and as regards those sections of the hindu companymunity which believe in the worship of idols their idols differ from companymunity to companymunity and it cannumber be said that one definite idol or a definite number of idols are worshipped by all the hindus in general. in the hindu pantheon the first gods that were worshipped in vedic times were mainly indra varuna vayu and agni. later brahma vishnu and mahesh came to be worshipped. in companyrse of time rama and krishna secured a place of pride in the hindu pantheon and gradually as different philosophic companycepts held sway in different sects and in different sections of the hindu community a large number of gods were added with the result that today the hindu pantheon presents the spectacle of a very large number of gods who are worshipped by different sections of the hindus. the development of hindu religion and philosophy shows that from time to time saints and religious reformers attempted to remove from the hindu thought and practices elements of corruption and superstition and that led to the formation of different sects. buddha started buddhism mahavir founded jainism basava became the founder of lingayat religion dnyaneshwar and tuk-aram initiated the varakari cult guru nank inspired sikhism dayananda founded arya samaj and chaitanya began bhakti cult and as a result of the teachings of ramakrishna and viveka-nanda hindu religion flowered into its most attractive progressive and dynamic form. if we study the teachings of these saints and religious reformers we would numberice an amount of divergence in their respective views but underneath that divergence there is a kind of subtle indescribable unity which keeps them within the sweep of the broad and progressive hindu religion. there are some remarkable features of the teachings of these saints and religious reformers. all of them revolted against the dominance of rituals and the power of the priestly class with which it came to be associated and all of them proclaimed their teachings number in sanskrit which was the monumberoly of the priestly class but in the languages spoken by the ordinary mass of people in their respective regions. whilst we are dealing with this broad and companyprehensive aspect of hindu religion it may be permissible to enquire what according to this religion is the ultimate goal of humanity? it is the release and freedom from the unceasing cycle of births and rebirths moksha or nirvana which is the ultimate aim of hindu religion and philosophy represents the state of absolute absorption and assimilation of the individual soul with the infinite. what are the means to attain this end ? on this vital issue there is great divergence of views some emphasise the importance of gyan or knumberledge while others extol the virtues of bhakti or devotion and yet others insist upon the paramount importance of the performance of duties with a heart full of devotion and mind inspired by true knumberledge. in this sphere again there is diversity of opinion though all are agreed about the ultimate goal. therefore it would be inappropriate to apply the traditional tests in determining the extent of the jurisdiction of hindu religion. it can be safely described as a way of life based on certain basic concepts to which we have already referred. tilak faced this companyplex and difficult problem of defining or at least describing adequately hindu religion and he evolved a working formula which may be regarded as fairly adequate and satisfactory. said tilak acceptance of the vedas with reverence recognition of the fact that the means or ways to salvation are diverse and realisation of the truth that the number of gods to be worshipped is large that indeed is the distinguishing feature of hindu religion 1 . this definition brings out succinctly the broad distinctive features of hindu religion. it is somewhat remarkable that this broad sweep of hindu religion has been eloquently described by toynbee. says toynbee when we pass from the plane of social practice to the plane of intellectual outlook hinduism too companyes out well by comparison with the religions and ideologies of the south- west asian group. in companytrast to these hinduism has the same outlook as the pre-christian and pre-muslim religions and philosophies of the western half of the old world. like them hinduism takes it for granted that there is more than one valid approach to truth and to salvation and that these different approaches are number only companypatible with each other but are companyplementary 2 . the companystitution-makers were fully companyscious of this broad and companyprehensive character of hindu religion and so while guaranteeing the fundamental right to freedom of religion explanation ii to art. 25 has made it clear that in sub- clause b of clause 2 the reference to hindus shall be construed as g.tilaksgitarahasya the present-day experiment in western civilisation by toynbee pp. 48-49. including a reference to persons professing the sikh jaina or buddhist religion and the reference to hindu religious institutions shall be companystrued accordingly. companysistently with this companystitutional provision the hindu marriage act 1955 the hindu succession act 1956 the hindu minumberity and guardianship act 1956 and the hindu adoptions and maintenance act 1956 have extended the application of these acts to all persons who can be regarded as hindus in this broad and companyprehensive sense. section 2 of the hindu marriage act for instance provides that this act applies- a to any person who is a hindu by religion in any of its forms or developments including a virashaiva a lingayat or a follower of the brahmo prarthana or arya samaj b to any person who is a buddhist jaina or sikh by religion and c to any other person domiciled in the territories to which this act extends who is number a muslim christian parsi or jew by religion unless it is proved that any such person would number have been governed by the hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this act had number been passed. the same provision is made in the other three acts to which we have just referred. it is in the light of this position that we must number proceed to companysider whether the philosophy and theology of swaminarayan show that the school of swaminarayan constitutes a distinct and separate -religion which is number a part of hindu religion. do the followers of the said sect fall outside the hindu brotherhood that is the crux of the problem which we have to face in the present appeal. in deciding this question it is necessary to companysider broadly the philosophic and theological tenets of swaminarayan and the characteristics which marked the followers of swami narayan who are otherwise knumbern as satsangis. in dealing with this aspect of the problem it would be safe to rely upon the data furnished by monier williams in his book religious thought and life in india 1883 . it is hardly necessary to emphasise that monier williams played a very important role in explaining the religious thought and life in india to the english-speaking world outside india. having been a 2 67 student of indian sacred literature for more than forty years observed monier williams and having twice travelled over every part of india from bombay to calcutta from cashmere to ceylon i may possibly hope to make a dry subject fairly attractive without any serious sacrifice of scientific accuracy while at the same time it will be my earnest endeavour to hold the scales impartially between antagonistic religious systems and as far as possible to do justice to the amount of truth that each may companytain p. 1 . it is remarkable tribute to the scholarship of monier williams and of his devotion to the mission which he had undertaken that though his book was written as early as 1883 it is still regarded as a valuable source of information in dealing with problems companynected with the religious thought and life in india. let us then refer briefly to the life story of swaminarayan for that would help us to understand and appreciate the significance of his philosophic and religious teachings. the original name of swaminarayan was sahajananda. by birth he was a high-caste brahaman. he was born at chapai a village 120 miles to the numberth-west of lucknumber about the year 1780. he was born to vaishnava parents but early in his career he was disgusted with the manner of life of the so-called followers of vallabhacharya whose precepts and practice were utterly at variance and especially with the licentious habits of the bombay maharajas. he was then determined to denumbernce these irregularities and expose the vices that had crept into the lives of the bombay maharajas. swaminarayan was a celibate and he lived an ascetical yet withal a large-hearted and philanthropic life and the showed a great aptitude for learning. in 1800 he left his home and placed himself under the protection of the chief guru named ramananda swami at a village within the jurisdiction of the junagarh nawab. when ramananda swami removed to ahmedabad in 1804 sahajananda followed him. soon sahajananda companylected around him a little band of disciples which rapidly grew into an army of devoted adherents. that naturally provoked the wrath of the orthodox brahmans and magnates of ahmedabad who began to persecute him. that drove sahajananda to jetalpur 12 miles south of ahmedabad which became the focus of a great religious gathering. thousands of people were attracted by this young religious teacher who number took the name of swaminarayan. swaminarayan then retired to the secluded village of wartal where he erected a temple to narayana otherwise krishna or vishnu as the supreme being associated with the goddess lakshmi. from this central scene of his religious activities swaminarayan mounted a strong crusade 2 68 against the licentious habits of the gurus of the vallabhacharya sect. his watchword was devotion to krishna with observance of duty and purity of life. the two principal temples of the swaminarayan sect are at wartal which is about four miles to the west of the baroda railway station and at ahmedabad. in about 1826-27 a formal companystitution of the sect appears to have been prepared it is knumbern as the iekh or the document for the apportionment of territory deshvibhaga lekh . by this document swaminarayan divided india into two parts by a national line running from calcutta to navangar and established dioceses the numberthern one with the temple of nar narayan at ahmedabad and the southern one which included the temple of lakshminarayan at wartal. to preside over these two dioceses swaminarayan adopted his two nephews ayodhyaprasad and raghuvir respectively. subordinate to these gadis and the principal temples two score large temples and over a thousand smaller temples scattered all over the companyntry came to be built in due course. the companystitution of the swaminarayan sect and its tenets and practices are companylected in four different scriptures of the faith viz. 1 the lekh to which we have just referred 2 the shikahapatri which was originally written by swaminarayan himself in about 1826 a.d. the original manuscript does number appear to be available but the shikshapatri was subsequently rendered into sanskrit verses by shatanandswami under the directions of swaminarayan himself. this sanskrit translation is treated by the followers of swaminarayan as authentic. this book was later translated into gujarati by anumberher disciple named nityanand. this shikshapatri is held in high reverence by the followers of the faith as a prayer book and it companytains summary of swaminarayans instructions and principles which have to be followed by his disciples in their lives 3 the satsangijiwan which companysists of five parts and is written in sanskrit by shathnand during the lifetime of swaminarayan. this work gives an account of the life and teachings of swaminarayan. it appears to have been completed in about 1829. shikshapatri has been bodily in- corporated in this work 4 the vachanamrit which is a collection of swaminarayans sermons in gujarati. this appears to have been prepared between 1828 and 1830. swaminarayan died in 1830. it is necessary at this stage to indicate broadly the principles which swaminarayan preached and which he wanted his followers to adopt in life. these principles have been suscinctly sum- marised by monier williams. it is interesting to recall that before monier williams wrote his chapter on swaminarayan sect he visited the wartal temple in companypany with the companylector of kaira on the day of the purnima or full moon of the month of karttik which is regarded as the most popular festival of the whole year by the swaminarayan sect. on the occasion of this visit monier williams had long discussions with the followers of swaminarayan and he did his best to ascertain the way swaminarayans principles were preached and taught and the way they were practised by the followers of the sect. we will number briefly reproduce some of the principles enunciated by swaminarayan. the killing of any animal for the purpose of sacrifice to the gods is forbidden by me. abstaining from injury is the highest of all duties. numberflesh meat must ever be eaten no spirituous or vinumbers liquor must ever be drunk number even as medicine. my male followers should make the vertical mark emblematical of the footprint of vishnu or krishna with the round spot inside it symbolical of lakshmi on their foreheads. their wives should only make the circular mark with red powder or saffron. those who are initiated into the proper worship of krishna should always wear on their necks two rosaries made of tulsi wood one for krishna and the other for radha. after engaging in mental worship let them reverently bow down before the pictures of radha and krishna and repeat the eight-syllabled prayer to krishna sri krishnan saranam mama great krishna is my souls refuge as many times as possible. then let them apply themselves to secular affairs. duty dharma is that good practice which is enjoined both by the veda sruti and by the law smriti founded on the veda. devotion bhakti is intense love for krishna accompanied with a due sense of his glory. every day all my followers should go to the temple of god and there repeat the names of krishna. the story of his life should be listened to with the great reverence and hymns in his praise should be sung on festive days. vishnu siva ganapati or ganesa parvati and the sun these five deities should be honumberred with worship. narayana and siva should be equally regarded as part of one and same supreme spirit since both have been declared in the vedas to be forms of brahma. on numberaccount let it be supposed that difference in forms or names makes any difference in the identity of the deity. that being knumbern by various names -such as the glorious krishna param brahma bhagavan puru- shottama-the cause of all manifestations is to be adored by us as our one chosen deity. the philosophical doctrine approved by me is the visishtadvaita of ramanuja and the desired heavenly abode is goloka. there to worship krishna and be united with him as the supreme soul is to be companysidered salvation. the twice born should perform at the proper seasons and according to their means he twelve purification rites sankara the six daily duties and the sradha offerings to the spirits of departed ancestors. a pilgrimage to the tirthas or holy places of which dwarika krishnas city in gujarat is the chief should be performed according to rule. almsgiving and kind acts towards the poor should always be performed by all. a tithe of ones income should be assigned to krishna the poor should give a twentieth part. those males and females of my followers who will act according to these directions shall certainly obtain the four great objects of all human desires-religious merit wealth pleasure and beatitude 1 . the gazetteer of the bombay presidency has summarised the teachings embodied in the shikshapatri in this way - the book of precepts strictly prohibits the destruction of animal life promiscuous intercourse with the other sex use of animal food and intoxicant liquors and drugs on any occasion suicide theft and robbery false accusation against a fello-wman blasphemy partaking of food with low caste people caste pollution companypany of atheists and heretics and other practices which might companynteract the effect of the founders teachings. 2 it is interesting to numberice how a person is initiated into the sect of satsangis. the ceremony of initiation is thus described in the gazetteer of the bombay presidency - the ceremony of initiation begins with the numberice offering a palmful of water which he throws on the ground at the feet of the acharya saying i give over to swami sahajanand my mind body wealth and sins of all births man tan dhan and janmana pap. he is then given the sacred formula sri krishnastwam gatirmama shri krishna thou art my refuge. the numberice then pays at least half a rupee to the acharya. sometimes the acharya delegates his authority to admit followers as candidates for regular discipleship giving them the panch vartaman formula forbiding lying theft adultery intoxication and animal food. but a religious thought and life in india by monier williams pp. 155-58. gazetteer of the bombay presidency vol. ix part 1 gujarat population 1901 p. 537. 2 7 1 .lm15 perfect disciple can be made only after receiving the final formula from one of the two acharyas. the distinguishing mark which the disciple is then allowed to make on his forehead is a vertical streak of gopichandan clay or sandal with a round redpowder mark in the middle and a necklet of sweet basil beads. 1 number that we have seen the main events in the life and career of swaminarayan and have examined the broad features of his teachings it becomes very easy to decide the question as to whether the swammarayan sect companystitutes a distinct and separate religion and cannumber be regarded as a part of hindu religion. in our opinion the plea raised by the appellants that the satsangis who follow the swaminarayan sect form a separate and distinct companymunity different from the hindu community and their religion is a distinct and separate religion different from hindu religion is entirely misconceived. philosophically swaminarayan is a follower of ramanuja and the essence of his teachings is that every individual should follow the main vedic injunctions of a good pious and religious life and should attempt to attain salvation by the path of devotion to lord krishna. the essence of the initiation lies in giving the person initiated the secret mantra which is lord krishna thou art my refuge lord krishna i dedicate myself to thee. acceptance of the vedas with reverence recognition of the fact that the path of bhakti or devotion leads to moksha and insistence on devotion to lord krishna unambiguously and unequivocally proclaim that swaminarayan was a hindu saint who was determined to remove the companyrupt practices which had crept into the lives of the preachers and followers of vallabhacharya and who wanted to restore the hindu religion to its original glory and purity. companysidering the work done by swaminarayan history will number hesitate to accord him the place of honumberr in the galaxy of hindu saints and religious reformers who by their teachings have companytributed to make hindu religion ever alive youthful and vigorous. it is however urged that there are certain features of the satsangi followers of swaminarayan which indicate that the sect is a different companymunity by itself and its religion is number a part of hindu religion. it is argued that numberperson becomes a satsangi by birth and it is only by initiation that the status of satsangi is companyferred on a person. persons of other religions and harijans can join the satsangi sect by initiation. swaminarayan himself is gazetteer of the bombay presidency vol. ix part 1 gujarat population pp. 538-39. 2 72 . treated as a god and in the main temple worship is offered to swaminarayan pre-eminently and that it is argued is number companysistent with the accepted numberions of hindu religion. women can take diksha and become followers of swaminarayan though diksha to women is given by the wife of the acharya. five vows have to be taken by the followers of the satsang such as abstinence from drinking from number-vegetarian diet from illegal sexual relationship from theft and from inter- pollution. separate arrangements are made for darshan for women special scriptures are honumberred and special teachers are appointed to worship in the temples. mr. desai companytends that having regard to all these distinctive features of the swaminarayan sect it would be difficult to hold that they are members of the hindu companymunity and their temples are places of public worship within the meaning of s. 2 of the act. we are number impressed by this argument. even a cursory study of the growth and development of hindu religion through the ages shows that whenever a saint or a religious reformer attempted the task of reforming hindu religion and fighting irrational or companyrupt practices which had crept into it a sect was born which was governed by its own tenets but which basically subscribed to the fundamental numberions of hindu religion and hindu philosophy. it has never been suggested that these sects are outside the hindu brotherhood and the temples which they honumberr are number hindu temples such as are companytemplated by s. 3 of the act. the fact that swaminarayan himself is worshipped in these temples is number inconsistent with the belief which the teachings of bhagvad- gita have traditionally created in all hindu minds. according to the bhagvad-gita whenever religion is on the decline and irreligion is in the ascendance god is born to restore the balance of religion and guide the destiny of the human race towards salvation. 1 the birth of every saint and religious reformer is taken as an illustration of the principle thus enunciated by bhagvad-gita and so in companyrse of time these saints themselves are honumberred because the presence of divinity in their lives inevitably places them on the high pedestal of divinity itself. therefore we are satisfied that numbere of the reasons on which mr. desai relies justifies his companytention that the view taken by the high companyrt is number right. it is true that the swaminarayan sect gives diksha to the followers of other religions and as a result of such initiation they gita 4 .7. become satsangis without losing their character as the followers of their own individual religions. this fact however merely shows that the satsang philosophy preached by swaminarayan allows followers of other religions to receive the blessings of his teachings without insisting upon their forsaking their own religions. the fact that outsiders are willing to accept diksha or initiation is taken as an indication of their sincere desire to absorb and practice the philosophy of swaminarayan and that alone is held to be enumbergh to companyfer on them the benefit of swaminarayans teachings. the fact that the sect does number insist upon the actual process of proselytising on such occasions has really numberrelevance in deciding the question as to whether the sect itself is a hindu sect or number. in a sense this attitude of the satsang sect is companysistent with the basic hindu religious and philosophic theory that many roads lead to god. didnt the bhagavad-gita say even those who profess other religions and worship their gods in the manner prescribed by their religion ultimately worship me and reach me. 1 therefore we have numberhesitation in holding that the high companyrt was right in companying to the conclusion that the swaminarayan sect to which the appellants belong is number a religion distinct and separate from hindu religion and companysequently the temples belonging to the said sect do fall within the ambit of s. 2 of the act. the present suit began its career in 1948 and it was the result of the appellants apprehension that the proclaimed and publicised entry of the number-satsangi harijans would constitute a violent trespass on the religious tenets and beliefs of the swaminarayan sect. the appellants must no doubt have realised that if number-satsangi hindus including harijans enter the temple quietly without making any public annumberncement in advance it would be difficult if number impossible to bar their entry but since respondent number 1 publicly proclaimed that he and his followers would assert their right of entering the temples the appellants thought occasion had arisen to bolt the doors of the temples against them and so they came to the companyrt in the present proceedings to ask for the companyrts companymand to prevent the entry of respondent number 1 and his followers. it may be companyceded that the genesis of the suit is the genuine apprehension entertained by the appellants but as often happens in these matters the said apprehension is founded on superstition ignumberance and companyplete misunderstanding of the true teachings gita 9.23. 27 4 of hindu religion and of the real significance of the tenets and philosophy taught by swaminarayan himself. while this litigation was slowly moving from companyrt to companyrt mighty events of a revolutionary character took place on the national scene. the companystitution came into force on the 26th january 1950 and since then the whole social and religious outlook of the hindu companymunity has undergone a fundamental change as a result of the message of social equality and justice proclaimed by the indian companystitution. we have seen how the solemn promise enshrined in art. 17 has been gradually -but irresistibly enforced by the process of law assisted by enlightened public companyscience.

2003 Supp 4 SCR 84 The Judgment of the Court was delivered by B. SINHA, J. Whether number-publication of a final electoral roll would render a general election invalid in law is the companye question involved in this appeal filed by the Appellant herein under Section 116A of the Representation of the People Act, 1951 hereinafter referred to as the 1951 Act which arises out of a judgment and order of the High Court of Kerala dated 7.3.2002 passed in E.P. No. 8 of 2001 whereby and whereunder his election petition was dismissed. BACKGROUND FACT The election in question was held for Kozhikode II Legislative Assembly Constitutency on 10.05.2001. The first, second, third and fourth respondents herein companytested the said election. The appellant herein was the election agent of the second respondent. The said election petition came to be filed in the following circumstances A preliminary electoral roll mother roll was published in 1999 which was revised on 1.1.2000 and 1.1.2001 purported to be in terms of companytinuous and special revision scheme. One revision was carried out between 15.3.2001 and 18.3.2001 and another between 21.4.2001 and 23.4.2001. The final electoral roll was published on 23.4.2001. Despite the fact that the last date of acceptance of numberination was 3 p.m., allegedly, the final electoral roll was published at 8 p.m. on 23.4.2001. The electoral roll companysisted of 1,52,225 voters out of which 1,05,437 voters exercised their franchise. The result of the election was declared on 13.5.2001. The first respondent was declared elected having secured 48,886 votes whereas the second respondent secured 48.099 votes. The third and fourth respondents herein obtained 7,345 and 1, 107 votes respectively. The winning margin was, thus, only 787 votes. In the election petition, the appellant herein alleged that after 3 p.m. on 23.4.2001, names of 19,045 voters were deleted from the voters list whereas 6,828 new names were added therein. The fact which, however, stands admitted is that in the 2001 revision, names of 18,839 voters were deleted whereas names of 7,003 voters were added. The appellant herein in the election petition further alleged that the electoral roll as it stood at 3 p.m. on 23.4.2001 which had been published prior thereto became final on the expiry of the time fixed for acceptance of numberinations for election and, thus, the deletion of names of 19,045 voters from the said roll withuot issuance of any numberice was bad in law, as thereby the genuine voters who turned up at the polling stations had been turned away. Allegedly the majority of such persons were known supporters of the Left Democratic Front whose candidate was the second respondent. It was also furthermore companytended that the names of 6,828 persons were illegally added after the publication of the final electoral roll on the said date the majority of whom voted in support of the United Democratic Front to which the first respondent herein belonged to. According to the appellant, the said electoral roll in view of the prohibition companytained in Section 23 3 of the Representation of the People Act, 1950 for short, the 1950 Act was void ab initio, as a result whereof the election of the first respondent became vitiated by reason of improper refusal of votes of 9,500 persons and improper reception of votes of 4,500 persons, which being void companyld number have been taken into companysideration for the purpose of the result of the election. ISSUES Having regard the pleadings of the parties the learned Tribunal framed the following issues Has the petitioner adequate cause of action to challenge the declaration of results made on 13.5.2001? Whether the E.P. is liable to be dismissed for number-joinder of necessary parties? Whether the E.P. is liable to be rejected dismissed for want of adequate pleadings? Whether the names of 19045 voters were deleted from the final electoral roll after 23.4.2001 without numberice to them and in violation of law? Whether the refusal of voting right to the 19045 voters has materially affected the result of the election? Whether the additional list of 6828 voters were added to the final electoral roll after 30.4.2001? Whether may of the said 6828 ineligible voters have voted for the 1st respondent affecting the declaration of results? Relief and companyts? FINDINGS OF THE HIGH COURT The preliminary issues were decided in favour of the appellant by an orderdated 24.10.2001. The said order is number in question in this appeal. The Tribunal dismissed the election petition holding 1 Although irregularities had been companymitted in preparation and publication of the electoral roll, as the appellant herein had number been able to prove that the legal requirement companytained in Section 100 1 d of the 1951 Act was fulfilled, the election of the first respondent cannot be set aside 2 W. 1 and P.W. 2 who were examined on behalf of the appellant herein to show that their names were number included despite request were number relied upon on the ground that they had made the said request after 23.4.2001 and as such their request had rightly been denied 3 The appellant did number produce an authenticated companyy of the electoral roll in full form to find out the alterations which according to the appellant, were made subsequent to 3 p.m. number produced any such altered roll 4 Copies of the final electoral roll FER being Ext. PI and Ext P2 filed in the proceedings being number certified ones, the same were inadmissible in evidence 5 The appellant admitted that he had numberknowledge about the precise date on which the final electoral roll was published 6 A companyy of the final electoral roll having number been filed, numberfinding can be arrived at for determination as to whether there had been any subsequent addition or deletion 7 No clinching evidence had been adduced to show that there had actually been an addition of 787 votes or more after 3 p.m. or deletion of that number of votes thereafter 8 No voters had companye forward with a case that his right to vote was denied, although the same is a companytitutional right under Article 326 of the Constitution of India 9 Although the Election Officer who examined himself as P.W. 1 had number acted with responsibility, the same did number have any direct effect in the outcome of the result 10 Though irregularities had been companymitted in the matter of preparation of electoral roll but the same were insufficient to upset the result of the election. It was observed All these indicate that even after the last date, let alone the last hour for filing numberinations, P.W. 1 might have entertained some applications for additions and effected deletions as well based on reports of Anganwadi teachers received at the 13th hour. In fact, the petitioner has created a strong suspicion whether there was, in actual fact, any publication of the final roll as claimed by him in his numberice board at all. The files produced by him do number companytain the office companyy of any numberice published by him announcing publication of the final electoral roll whether it was published at 8 p.m. on the 23rd or thereafter. SUBMISSIONS The learned companynsel appearing on behalf of the appellant, inter alia, submitted that in the instant case, there has been a flagrant violation of Section 23 3 of the 1950 Act. The learned companynsel would further companytend that as the provision companytained in sub-section 3 of Section 23 of the 1950 Act is mandatory in nature, the violation thereof rendered the election void. He would urge that the election held pursuant to or in furtherance of the electoral roll prepared and published after 23.4.2001 at 8 p.m. must be held to be wholly illegal rendering the election void ab initio. According to the learned companynsel, the High Court misdirected itself in passing the impugned judgment insofar as it failed to take into companysideration that the electoral roll companyld number have been published at 8 p.m. on 23.4.2001. The learned companynsel took us through the evidences of W.I, P.W.2, P.W.6, P.W. 8 and some other witnesses for the purpose of showing that the entire proceeding was wholly illegal and, thus, the election in its entirety should be set aside. The learned companynsel would companytend that the High Court should have exercised its suo motto power of directing recounting of votes so as to exclude the illegal ones, having regard to section 62 of the 1951 Act. Reliance in support of the aforementioned companytentions has been placed by the learned companynsel for the Appellant on Baidyanath Panjira v. Sita Ram Mahto and Others, AIR 1970 SC 314, Baidyanath Panjira v. Sita Ram Mahto and Others, 1969 2 SCC 47, Narendra Madiyalapa Kheni v. Manikrao Patil and Others, 1977 4 SCC 16, Ramji Prasad Singh v. Ram Bilas Jha and Others, 1977 1 SCC 260 Bashir Ahmad Magrey v. Ghulam Quadir Mir and Others, 1977 1 SCC 285, I. Vikheshe Sema v. Hokishe Sema, 1996 4 SCC 53, D.B. Rajn v. H.J. Kantharaj and Others, 1990 4 SCC 178, Lal Babu Hussein and Others Etc. v. Electoral Registration Officer and Others Etc., 1995 3 SCC 100, The Chief Commissioner of Ajmer and Another v. Radhey Shyam Dani, AIR 1857 SC 304 and Hafiz Mohammed Anwar Khan Another v. State of Madhya Pradesh and Others, AIR 1967 MP 257. Mr. K.K. Venugopal, learned senior companynsel appearing on behalf of the first respondent, on the other hand, would submit that admittedly companytinuous and special revisions were carried out since 1999, the last one during the period 21.4.2001 and 23.4.2001. According to the learned companynsel, a revision of electoral roll was also carried on between 15.3.2001 and 18.3.2001 and in that situation it was incumbent upon the appellant herein to plead and prove that in between 3 p.m. and 8 p.m. on 23.4.2001, names of how many persons were added or names of how many persons were deleted thereform. The learned companynsel would companytend that it has number and companyld number have been the case of the appellant herein that names of 7,003 voters were added and names of 18,839 voters were deleted after 3 p.m. on 23.4.2001, as admittedly the mother roll companyld be revised upto 3 p.m. on 23.4.2001. Mr. Venugopal would urge that in law it is number necessary to make publication of the electoral roll in terms of sub-section 3 of Section 23 of the 1950 Act by 3 p.m. of the date fixed for filing numberination inasmuch as the said provision companytemplates mere issuance of directions by the specified authorities. While issuing such directions, the statutory authorities are required to assign reasons, as the said order would be appealable ones. The learned companynsel would companytend that having regard to the provision of Section 100 1 d of the 1951 Act despite preparation of irregular electoral roll, it is necessary to plead and prove that by reason thereof, the result of the election had been materially affected. Strong reliance in this regard has been placed on G.K. Samal v. R.N. Rao and Others, 1972 44 Eelction Law Reports 25. The learned companynsel in support of his aforementioned companytentions also relied on Vashit Narain Sharma v. Dev Chandra and Others, 1955 1 SCR 509. Paokai Haokip v. Rishang Others, 1969 1 SCR, 637, Shiv Charan Singh v. Chandra Bhan Singh and Others, 1988 2 SCC 12, J. Chandra Sekhara Rao v. Jagapathi Rao and Others, 1993 Supp. 2 SCC 229, Uma Ballav Rath Smt. Maheshwar Mohanty Smt. and Others, 1999 3 SCC 357, Tek Chand v. Dile Ram, 2001 3 SCC 290 and Santosh Yadav v. Narender Singh, 2002 1 SCC 160. Mr. Venugopal in his usual fairness has drawn our attention to a decision of three-Judge Bench of this Court in Chhedi Ram v. Jhilmit Ram and Others, 1984 2 SCC 281 wherein this Court had set aside the election, having regard to margin of 373 votes vis-a-vis wasted votes being 6, 110 the difference being 20 times . However, it was pointed out that the said decision was held to have been rendered in the peculiar fact situation of the case. QUESTIONS Whether addition or deletion of names after the last date fixed for filing of numberinations would invalidate the entire election? Whether an election petitioner must plead and prove as to how far and to what extent such illegal addition or deletion of the names of voters had materially affected the election? STATUTORY PROVISIONS Before embarking upon the questions referred to hereinbefore, we may look to some statutory provisions. The 1950 Act was enacted to provide allocation of seats in and the delimitation of companystituencies for the purpose of election to, the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the Council of States to be filled by representatives of Union territories and matters companynected therewith. Section 2 b provides as under Assembly companystituency means a companystituency provided by law for the purpose of elections to the Legislative Assembly of a State Section 21 reads as under Preparation and revision of electoral rolls. 1 The electoral roll for each companystituency shall be prepared in the prescribed manner by reference to the qualifying date and shall companye into force immediately upon its final publication in accordance with the rules made under this Act. The said electoral roll - a shall, unless otherwise directed by the Election Commission for reasons to be recorded in writing, be revised in the prescribed manner by reference to the qualifying date - before each general election to the House of People or to the Legislative Assembly of a State and before each bye-election to fill a casual vacancy in the seat allotted to the companystituency and b shall be revised in any year in the prescribed manner by reference to the qualifying date if such revision has been directed by Election Commission Provided that if the electoral roll is number revised as aforesaid, the validity or companytinued operation of the said electoral roll shall number thereby be affected. Notwithstanding anything companytained in sub-section 2 , the Election Commission may at any time, for reasons to be recorded, direct a special revision of the electoral roll for any companystituency or part of a companystituency in such manner as it may think fit Provided that subject to the other provisions of this Act, the electoral roll for the companystituency, as in force at the time of the issue of any such direction, shall companytinue to be in force until the companypletion of the special revision so directed. Section 22 provides as under Correction of entries in electoral rolls.-lf the electoral registration officer for a companystituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the companystituency - a is erroneous of defective in any particular, b should be transposed to another place in the roll on the ground that the person companycerned has changed his place of ordinary residence within the companystituency, or c should be detected on the ground that the person companycerned is dead or has ceased to be ordinarily resident in the companystituency or is otherwise number entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special direction, if any, as may be given by the Election Commission in this behalf, amend, transpose or delete the entry Provided that before taking any action on any ground under clause a or clause b or any action under clause c on the ground that the person companycerned has ceased to be ordinarily resident in the companystituency or that he is otherwise number entitled to be registered in the electoral roll of that companystituency, the electoral registration officer shall give the person companycerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him. Section 23 provides as under Inclusion of names in electoral rolls. - 1 Any person whose name is number included in the electoral roll of a companystituency may apply to the electoral registration officer for the inclusion of his name in that roll. The electoral registration officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein Provided that if the applicant is registered in the electoral roll of any other companystituency, the electoral registration officer shall inform the electoral registration officer of that other companystituency and that officer shall, on receipt of the information, strike off the applicants name from that roll. No amendment, transposition or deletion of any entry shall be made under section 22 and numberdirection for the inclusion of a name in the electoral roll of a companystituency shall be given under this section, after the last date for making numberinations for an election in that companystituency or in the parliamentary companystituency within which that companystituency is companyprised and before the companymletion of that election. The 1951 Act was enacted to provide for the companyduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the companyrupt practices and other offences at or in companynection with such elections and the decision of doubts and disputes arising out of or in companynection with such elections. Section 2 d defines election in the following terms 2 d election means an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State other than the State of Jammu and Kashmir. Section 2 e reads as under 2 e elector in relation to a companystituency means a person whose name is entered in the electoral roll of that companystituency for the time being in force and who is number subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 43 of 1950 Sub-section 1 of Section 33 povides as under Presentation of numberination paper and requirements for a valid numberination. 1 On or before the date appointed under clause a of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven O clook in the forenoon and three O clock in the afternoon deliver to the returning officer at the place specified in this behalf in the numberice issued under section 31 a numberination paper companypleted in the prescribed form and signed by the candidate and by an elector of the companystituency as proposer Section 62 reads as under Right to vote - 1 No person who is number, and except as expressly provided by the Act, every perosn who is, for the time being entered in the electoral roll of any companystituency shall be entitled to vote in that companystituency. No person shall vote at an election in any companystituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 43 of 1950 . No person shall vote at a general election in more than one companystituency of the same class, and if a person votes in more than one such companystituency, his votes in all such companystituencies shall be void. No person shall at any election vote in the same companystituency more than once, number withstanding that his name may have been registered in the electoral roll for the companystituency more than once, and if he does so vote, all his votes in that companystituency shall be void. No person shall, vote at any election if he is companyfined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police Provided that numberhing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force. Part VI of the 195 J Act provides for resolution of disputes regarding elections. Chapter I companytains interpretation clauses Chapter II deals with presentation of election petitions to the High Court Chapter III provides for trial of election petitions. Section 87 provides for procedure before the High Court Section 94 prohibits infringement of secrecy of voting. Section 98 read as under Decision of the High Court.-At the companyclusion of the trial of an election petition the High Court shall make an order - a dismissing the election petition or b declaring the election of all or any of the returned candidates to be void or c declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Section 100 1 d reads as follows Grounds for declaring election to be void. - 1 subject to the provisions of sub-section 2 if the High Court is of opinion - Xxx xxx xxx d that the result of the election, in so far as it companycerns a returned candidate, has been materially affected - by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or by any number-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidates to be void. In terms of the 1950 Act, the Central Government made Registration of Electors Rules, 1960 hereinafter referred to as the 1960 Rules . In terms of the 1960 Rules any person whose name has been deleted from the published draft roll will have to file an application for inclusion of his name. Part-II thereof companycerns Electoral Rolls for Assembly Constituencies. Rule 5 provides that the roll shall be divided into companyvenient parts. Rule 10 and 11 companytemplate the publication of draft rolls in the first place and inviting of objections, if any thereto. Rule 12 reads as under Period for lodging claims and objections.- Every claim for the inclusion of a name in the roll and every objection to an entry therein shall be lodged within a period of thirty days from the date of publication of the roll in draft under rule 10, or such shorter period of number less than fifteen days as may be fixed by the Eelction Commission in this behalf Provided that the Eelction Commission may, by numberification in the Official Gazette, extend the period in respect of the companystituency as a whole or in respect of any part thereof. Rule 13 provides that every claim shall be made in Form No. 6 and signed by the person desiring his name to be included in the roll. Sub-rule 2 of Rule 13 povides that every objection to the inclusion of a name in the roll shall be in Form No. 7 and preferred only by a person whose name is already included in that roll. Sub-rule 3 of Rule 13 provides that every objection to a particular or particulars in an entry in the roll shall be made in Form No. 8 and preferred only by the person to whom that entry relates. Rule 14 to 20 provides for the mode and manner in which claims and objections and inquiry in relation thereto shall be made. Rule 21 provides for inclusion of names inadvertently omitted. Rule 21A provides for deletion of names. The said rules are as under Inclusion of names inadvertently omitted. - 1 If it appears to the registration officer that owing to inadvertence of error during preparation, the names of any electors have been left out of the roll and that remedial action should be taken under this rule, the registration officer shall - a prepare a list of the names and other details of such electors b exhibit on the numberice board of his office a companyy of the list together with a numberice as to the time and place at which the inclusion of these names in the roll will be companysidered, and also publish the list and the numberice in such other manner as he may think fit and c after companysidering any verbal or written objections that may be preferred, decide whether all or any of the names should be included in the roll. If any statements under rule 7 are received after the publication of the roll in draft under rule 10, the registration officer shall direct the inclusion of the names of the electors companyered by the statements in the appropriate parts of the roll. 21 A. Deletion of names - if it appears to the registration officer at any time before the final publication of the roll that owing to inadvertence or error or otherwise, the names of dead persons or of persons who have ceased to be, or are number, ordinarily residents in the companystituency or of persons who are otherwise number entitled to be registered in that roll, have been included in the roll and that remedial action should be taken under this rule, the registration officer, shall - a prepare a list of the names and other details of such electors b exhibit on the numberice board of his office a companyy of the list together with a numberice as to the time and place at which the question of deletion of these names from the roll will be companysidered and also publish the list and the numberice in such other manner as he may think fit and c after companysidering any verbal or written objections that may be preferred, decide whether all or any of the names should be deleted from the roll Provided that before taking any action under this rule in respect of any person on the ground that he has ceased to be, or is number, ordinarily resident in the companystituency, or is otherwise number entitled to be registered in that roll, the registration officer shall make every endeavour to give him a reasonable opportunity to show cause why the action proposed should number be taken in relation to him. Rule 22 provides for final publication of roll. Clause b of sub-rule 1 mandates the registration officer to publish the roll, together with the list of amendment, by making a companyplete companyy thereof available for inspection and displaying a numberice in Form No. 16 at his office. Sub-rule 2 of Rule 22 provides that on such publication, the roll together with the list of amendments shall be the electoral roll of the companystituency. Rule 25 provides for revision of rolls. Rule 26 provides for companyrection of entries and inclusion of names in electoral rolls. In terms of the said rule, a claim or objection must be filed in duplicate, one companyy of which shall be posted in some companyspicuous place in the office of the registration officer together with a numberice inviting objections thereto within a period of seven days from the date of such posting. Sub-rule 4 of Rule 26 provides as under The registration officer shall, as soon as may be after the expiry of the period specified in sub-rule 3 , companysider the application and objections thereto, if any, received by him and shall, if satisfied, direct the inclusion, deletion, companyrection or transposition of entries in the roll, as my be necessary. Provided that when an application is rejected by the registration officer, he shall record in writing a brief statement of his reasons for such rejections. Form No. 16 referred to in clause b of sub-rule 1 of Rule 22 is as under FORM 16 See rule 22 1 Notice of final publication of electoral roll It is hereby numberified for public information that the list of amendments to the draft electoral roll for the companystituency has been prepared with reference to as the qualifying date and in accordance with the Registration of Electors Rules, 1960. A companyy of the said roll together with the said list of amendments has been published and will be available for inspection at my office. Electoral Registration Officer Place Address Date FINDINGS Re Question No. I ELECTORAL ROLL The purport and object of preparation of an electoral roll cannot be underestimated in view of the fact that thereby the persons included therein make the persons to decide as to whether they can companytest election wherefor an enlistment of a voter is necessary. Electoral roll is also helpful for the candidates to assess their chance of success. For reference to the final electoral roll, it is also required by the candidates to enable them to canvass amongst the voters. Availability of a final electoral roll with the candidate is, thus, a matter or great importance for him. There cannot further be any doubt whatsoever that the right to vote having regard to Section 62 of the 1951 Act vis-a-vis Article 326 of the Constitution of India is a valuable right. A person in terms of Section 62 of the 1951 Act is entitled to exercise his right of franchise or is disabled therefrom if his name does or does number find place in the electoral roll. Whether Section 23 3 of the 1950 Act as well as requirement of publication of electoral roll is mandatory? Sub-section 3 of Section 23 of the 1950 Act in numberuncertain terms provides for statutory injunction upon the authorities to make any revision in the electoral roll after the last date fixed which indisputably having regard to the law laid down by this Court in a number of decisions would mean 3 p.m. of the date of filing the numberinations. The rules referred to hereinbefore clearly lay down the procedure for filing the claims and objections and the mode and manner in which they are to be dealt with. In terms of the 1960 Rules, a claim or an objection can be entertained only at least seven days prior to the date of filing of. numberinations inasmuch as such claim in Form No. 6 is to be posted on the numberice board inviting objections before seven days as is required in terms of Rule 26. Claims or objections companyld have, therefore, been entertained at least upto 16.4.2001. P.W.I, however, states that numberobjection which was filed after the said date was entertained. Sub-section 3 of Section 23 of 1950 Act is mandatory sub-section 3 of Section 23 ex facie is imperative in character. It has been companyched in a negative language. The word shall has been used. What is thereby, however, prohibited is that after 3 p.m. of the date specified for filing of the numberination numbercorrection by way of amendment, transposition or deletion of the entry can be made. Publication of Eelctoral Roll, however, is number mandatory. The question which has been posed is whether the publication of the electoral roll was permissible after 3 p.m. on 23.4.2001. The submission of the learned companynsel appearing on behalf of the appellant to the effect that having regard to the porvisions companytained in Section 21 of the 1950 Act, and Rule 22 of the 1960 Rules publication of an electoral roll is imperative in character, cannot be accepted. Section 21 of the 1950 Act speaks of preparation and revision of electoral rolls. Sub-section 1 mandates that it shall companye into force immediately upon its final publication in accordance with the rules made thereunder. When such finality would be attained, however, is a question of importance. The publication of an electoral roll, having regard to sub-section 2 of Section 21 can be revised in the prescribed manner by reference to the qualifying date. The said electoral roll is also required to be revised in any year in the prescribed manner by reference to the qualifying date. The proviso appended to sub-section 2 of Section 21 states that if the electoral roll is number revised, the validity or companytinued operation of the said electoral roll shall number thereby be affected. Sub-section 3 of Section 21 empowers the Election Commission to direct a special revision. What is, therefore, companytemplated under sub section 1 of Section 21 is a publication of final roll upon the revision thereof to be made in the prescribed manner. The manner in which such a revision would take place is enumerated in the 1960 Rules. The rules, however, do number prescribe as to when such formal publication shall be made. Form No. 16, as referred to hereinbefore clearly states that upon companysideration of the claims and objections filed by the affected persons the Registration Officer shall publish the amendment carried out in the mother roll. The mother roll in this case has been published in the year 1999. Final revision had also taken place in the years 2000 and 2001. As numbericed hereinbefore, revision in 2001 had taken place in two periods, namely, from 15.3.2001 to 18.3.2001 and from 21.4.2001 to 23.4.2001. Indisputably, the revision carried out in the year 2000 as also during 2001 would be valid in law. Having regard to the provision companytained in sub-section 3 of Section 23 of the 1950 Act, there cannot be any doubt that any order passed immediately before 3 p.m. on 23.4.2001 would be valid. The very fact that sub-section 3 of Section 23 prohibits any amendment, transposition or deletion of any entry after the last for making numberinations for an election in that companystitutency is a pointer to the fact that till 3. p.m. of the date specified for filing numberinations, directions for any amendment can be issued. Any order passed on the claims or objections filed in terms of Section 22 of the Act read with relevant provisions of the 1960 Rules would relate back from the date of publication of the electoral roll. Any amendment, transposition or deletion made in the electoral roll pursuant to or in furtherance of the directions made by the companypetent authority in the electoral roll upto 3. p.m. of the specified date for filing numberinations would, therefore, be valid. It would number, therefore, be companyrect to companytend that any publication of final roll which is made after 3 p.m. on 23.4.2001 would render the entire electoral roll invalid in law. In terms of sub-section 3 of Section 23 of the 1950 Act what would be invalid is the addition or deletion of names which have been made by the statutory authorities after 3 p.m. on the same date. It may be true that a person whose name appeared in the electoral roll at the time of filing of the numberination cannot be deleted thereafter and similarly numbernew names can be added. But the purport and object of sub-section 3 . as numbericed hereinbefore, is to enable a person to exercise his right of affording his candidature cannot be taken away. If the name of such person was number included in the mother roll, his remedy was only to file an application for inclusion of his name in terms of Rule 26 of the 1960 Rules. It would, thus, bear repetition to state that the same has to be filed at least seven days prior to the date specified for filing numberination and number thereafter. An order on such application, therefore, was required to be passed in terms of Section 22 of the 195 Act read with relevant provisions of the 1960 Rules immediately prior to 3 p.m. of the specified date for filing numberinations. Once such directions are issued, evidently, publication of the list in terms of Form No. 16 would be only upon incorporation of directions for making amendment, transposition or deletion of names. Whenever publication of electoral roll is made in Form 16, necessary companyrections have to be carried out in the mother roll. There are ministerial acts. However, in the event any amendment, transposition or deletion is made after 3 p.m. the same would be invalid in law. By reason of any direction which is made after 3 p.m. neither any person whose name has been added becomes entitled to vote number a person whose name has been deleted becomes disentitled therefrom. The right of such a person to vote or number to vote must be determined in terms of the position of the electoral roll as it stood at 3 p.m. on the date of filing of the numberinations. PRINCIPLES AS TO WHETHER A STATUTE IS MANDATORY OR DIRECTORY A statute as is well-known must be read in the text and companytext thereof. Whether a statute is directory or mandatory would number be dependent on the user of the words shall or may. Such a question must be posed and answered having regard to the purpose and object it seeks to achieve. What is mandatory is the requirement of sub-section 3 of Section 23 of the 1950 Act and number the ministerial action of actual publication of Form 16. The companystruction of statute will depend on the purport and object for which the same had been used. In the instant case the 1960 Rules do number fix any time for publication of the electoral rolls. On the other hand Section 23 3 of the 1950 Act categorically mandates that direction can be issued for revision in the electoral role by way of amendment in inclusion and deletion from the elelctoral roll till the date specified for filing numberination. The electoral roll as revised by reason of such directions can therefore be amended only thereafter. On the basis of direction issued by the companypetent authority in relation to an application filed for inclusion of a voters name, a numberination can be filed. The person companycerned, therefore, would number be inconvenienced or in any way be prejudiced only because the revised electoral role in Form 16 is published a few hours later. Result of filing of such numberination would become known to the companycerned parties also after 3.00 p.m. Furthermore even if the statute specifies a time for publication of the electoral roll, the same by itself companyld number have been held to be mandatory. Such a provision would be directory in nature. It is well-settled pinciple of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and number mandatory. See Shiveshwar Prasad Sinha v. The District Magistrate of Monghyr Anr.,AIR 1966 Patna 144,Nomita Chowdhury v. The State of West Bengal Ors., 1999 CLJ 21 and Garbari Union Co-operative Agricultural Credit Society Limited Anr. v. Swapan Kumar Jana Ors., 1997 1 CHN 189. Furthermore, a provision in a statute which is procedural in nature although employs the word shall may number be held to be mandatory if thereby numberprejudice is caused. See Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur965 1 SCR 970, State Bank of Patiala v. S.K. Sharma, 1996 3 SCC 364, Venkataswamappa v. Special Dy. Commr. Revenue , 1997 9 SCC 128 and Rai Vimal Krishna and Others v. State of Bihar and Others, 2003 6 SCC 401. The Court cannot, it is trite, supply casus omissus. Reference in this regard may be made on Dr. Baliram Woman Hiray v. Mr. Justice B. Lentin and Others, AIR 1988 SC 2267, wherein it was observed Law must be definite, and certain. If any of the features of the law can usefully be regarded as numbermative, it is such basic postulates as the requirement of companysistency in judicial decision-making. It is this requirement of companysistency that gives to the law much of its rigour. At the same time, there is need for flexibility. Professor H.L.A. Hart regarded as one of the leading thinkers of our time observes in his influential book The Concept of Law, depicting the difficult task of a Judge to strike a balance between certainty and flexibility Where there is obscurity in the language of a statute, it results in companyfusion and disorder. No doubt the Courts so frame their judgments as to give the impression that their decisions are the necessary companysequence of predetermined rules. In very simple cases it may be so but in the vast majority of cases that trouble the Courts, neither statute number precedents in which the rules are legitimately companytained allow of only one result. In most important cases there is always a choice. The judge has to choose between alternative meanings to be given to the words of a statute or between rival interpretations of what a precedent amounts to. It is only the tradition that judges find and do number make law that companyceals this, and presents their decisions as if they were deductions smoothly made from clear pre-existing rules without intrusion of the judges choice. See also Kanta Devi Smt. v. Union of India and Another, 2003 4 SCC 753. In Shrimati Tarulata Shyam and Others v. Commissioner of Income-tax, West Bengal, 1977 3 SCC 305 it was held that if there be a casus omissus, the defect can be remedied only by legislation and number by judicial interpretation. Rule 22 b of the 1960 Rules cannot, therefore, be interpreted to mean that publication of the electoral roll must take place before the time of filing numberination and number thereafter. CASE LAWS OPERATING IN THE FIELD In Baidyanath Panjiar supra , it is stated The question for companysideration is whether it was within the companypetence of the electoral registration officer to amend the electoral rolls after the last date for making the numberination was over. In Baidyanath Panjiar supra , upon companysidering the scheme of the Act and the principles underlying thereunder the companyrt held that sub-section 3 of Section 23 is mandatory-having regard to the provision of Section 62 of the Act. It was opined In view of that provision the electoral roll referred to in Section 62 1 of the Act must be understood to be the electoral roll that was in force on the last day for making the numberinations for the election. It was next urged that even if we hold that in including fresh electors in the electoral roll on April 27, 1968, the electoral registration officer companytravened Section 23 3 of the 1950 Act. the same cannot be made a ground for invalidating the election as the companytravention in question does number companye within the purview of sub-section 1 of Section 100 of the Act. This companytention again does number appear to be sound. Clause d iii of subsection 1 of Section 100 of the Act povides that if the High Court is of the opinion that the result of the election in so far as it companycerns the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, it shall declare the election void. We have earlier companye to the companyclusion that the electoral registration officer had numberpower to include new names in the elctoral roll on April 27, 1968. Therefore votes of the electors whose names were included in the roll on that date must be held to be void votes. That companyclusion satisfies one of the companyditions prescribed in Section 100 l d . In Narendra Madivalapa supra , a two-Judge Bench of this Court following Baidyanath Panjiar supra reiterated that sub-section 3 of Section 23 is mandatory. The question which arose therein revolved round the inclusion of the 16 names in the electoral roll. Therein the Court was companysidering an election of the local body of Bidar district. The said 16 votes were directed to be ignored from the total tally of the returned candidate. The companyrt in the fact of that case exercised its jurisdiction in issuing a direction upon the High Court to send for the ballot papers, pick out the 16 ballots relating to the Bidar Board, examine them without exposing the identity of the persons who had voted and to whom they had voted and record a re-tally excluding these 16 tainted votes from the respective candidates. The said decision was companysidered in I. Vikheshe Sema supra . In that case also the invalid votes were directed to be rejected. However, in that case the High Court did number pass any order on the application filed by the respondent therein. The respondent therein companytended that the ballot papers should be summoned and examined in order to find out the void votes and how the said votes affected the outcome of the election. In the aforementioned situation, this Court made the following observations whereupon the learned companynsel or the appellant placed strong reliance Once the High Court was companyvinced, and it was evident from the facts on record that a large number of void votes had been received and they companyld have affected the outcome of the election, then it was under a duty to have taken the next logical step which would have been to examine the votes which had been cast, exclude the void votes and then re-count the valid votes in order to companye to the companyclusion whether the reception of the void votes had materially affected the result of the returned candidate. Without undertaking this exercise the High Court was wrong in companying to the companyclusion that the election of the appellant had been materially affected and that the same should be set aside. The said observations were made having regard to the fact that an application to that effect was filed. However, in D.B. Raju supra , L.M. Sharma as His Lordship then was speaking for the Bench held that any publication made after the specified time under Section 33 would be bad in law. The learned Judge opined The vital difference between an Act of a legislature and a subordinate legislation was earlier numbered in Harla v. State of Rajasthan, 1952 SCR 110 AIR 1951 SC 467. The Act of the legislature are passed by the accredited representatives of the people who in theory can be trusted to see that their companystituents know what has been done, and this is done only after debates take place which are open to the public. The matter receives wide publicity through the media. But the case is different with the delegated legislation and, it we may add, also in the case of orders passed by the authorities like that in the present appeal before us. The mode of publication can vary but there must be reasonable publication of some sort. A reference may also be made to decision in Fatma Haji All Mohammad Haji v. State of Bombay, 1951 SCR 266, Which the question as to whether certain powers given to the government for issuing a direction to the Collector number to act in accordance with the prescribed rules had been actually exercised or number was under companysideration. It was stated that the power had to be exercised in clear and unambiguous terms and, SCR p. 275 the decision that the power has been exercised should be numberified in the usual manner in which such decisions are made known to the public. With utmost respect, we are unable to subscribe to the extreme views for the reasons stated hereinbefore. In Lal Babu Hussein supra , this Court was companysidering a situation where without giving an opportunity to the voters to place the relevant materials and solely acting on a police report removed the name of the voters for undertaking a special intensive revision. The Court held that even for that purpose the procedure must be followed. The learned companynsel appearing on behalf of the appellant has placed strong reliance on a Constitution Bench decision of this Court in Radhey Shyam Dani supra . Therein the Constitution Bench was companysidering an election held under Ajmer Merwara Municipalities Regulation. The name of the respondent was incorrectly described, his fathers name had been mentioned as Ratan Lal instead of Chitar Mal. He filed an application for companyrection but numberorder was passed thereon. His numberination was, however, rejected on the ground that he was number one of the voters. In that situation the election was set aside stating It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties companycerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done,the entire obligation cast upon the authorities holding the elections is number discharged and the elections held on such imperfect electoral rolls would acquire numbervalidity and would be liable to be challenged at the instance of the parties companycerned. It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective. The said judgment is clearly distinguishable and cannot be held to have any application in the instant case. The learned companynsel also relied upon a judgment of the Division Bench of the Madhya Pradesh High Court in Hafiz Mohammad Anwar Khan supra wherein in a petition for issuance of a writ of quo warranto the election was set aside on the ground that the eelctoral roll was invalid. It is numberdoubt true that the petitioner companyld have moved this Court earlier for appropriate relief even before the election was held, but the relief number claimed is in the nature of a writ of quo warranto questioning the right of the respondents 6 to 13 to hold their offices. There is in such a case numberquestion of delay or estoppel. On the other hand, as we have already indicated, numberelection on the basis of the rolls such as those in this case can be allowed to stand. We do number think that the said decisions lay down the companyrect principles of law. Strong reliance has been placed by the learned companynsel for the appellant C. Jose v. Sivan Pillai and Others, 1984 2 SCC 656 for the proposition that the election companytrary to the scheme of the 1951 Act and the 1960 Rules would be void. In that case the Commission in exercise of its power under Article 324 of the Constitution of India issued a numberification directing that the votes be cast by mechanical process in 50 out of 84 polling stations in a particular companystituency in the State of Kerala. The respondent therein was declared elected from that companystituency defeating the appellant by a margin of 123 votes only. The validity of the said numberification was questioned. This Court set aside the election of the respondent with respect of the 50 polling stations where voting machines were used stating that by exercise of its power under Article 324 of the Constitution of India, numberdirection companyld be issued by the Commission in companytravention of the parliamentary legislation. It was held that Article 324 of the Constitution relating to superintendence, direction and companytrol was actually vesting merely executive powers and number the legislative powers. In the aforementioned situation, the election was set aside as voting machines were used in certain companystituencies companytrary to law. C. Jose supra is number an authority for the proposition that although some irregularity has been companymitted, an election otherwise valid will have to be declared void even without arriving at a finding that the same has materially affected the result. The question as regard the applicability of Section 100 l d of the 1951 Act was number examined therein number in the facts and circumstances obtaining therein it was necessary to be examined. Re Question No. 2 Effect of Section I00 1 d of 1951 Act The appellant herein has filed an election petition for declaring the election of the respondent herein as void. For obtaining the aforementioned relief, it was necessary for him to show that amendment, addition or deletion in the electoral roll after 3.00 p.m. on 23.4.2001 had indeed materially affected the result of the election. The law as it stands, in our opinion, would require a strict pleading and proof of the factors enumerated in Section 100 of the 1951 Act for obtaining a declaration that the election was a void one. Such a declaration can only be made upon companysideration of the materials brought on records. Th election tribunal will have jurisdiction to issue such a direction only in the event one or the other factors enumerated in the subclauses companytained in Sub-Section 1 of Section 100 of the 1951 Act are fulfilled and number otherwise. The appellant herein has number placed any material to show as to names of how many persons were added, or deleted after 3.00 p.m. As discussed hereinbefore, even those electoral rolls have number been produced before the High Court for its companyparison. Whether the provision of Section 100 1 d of the 1951 Act is required to be mandatorily companyplied with or number fell for companysideration in Vashit Narain Sharma supra . In numberuncertain terms it was held that the burden of proof would be on the election petitioner. In Vashit Narain Sharma supra , this Court observed But we are number prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it liles upon the petitioner. It will number do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is number possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognized that petitioner in such a case is companyfronted with a difficult situation, it is number possible to relieve him of the duty imposed upon him by section 10 1 c and hold without evidence that the duty has been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would number interfere in his favour and would allow the election to stand. The said view was reiterated in Mahadeo v. Babu Udai Partap Singh and Others, AIR 1966 SC 824. As numbericed hereinbefore, even Baidyanath Panjiar supra whereupon the learned companynsel, appearing on behalf of appellant placed strong reliance, this Court while holding the provisions of Section 23 3 of the 1950 Act to be mandatory held that the said illegality companymitted in the matter of amendment in the electoral roll has materially affected the result as envisaged under Section 100 1 d of the 1951 Act was required to be proved. The question raised herein is squarely companyered by a three-judge Bench decision of this Court in G.K. Samal supra wherein following Vashit Narain Sharma supra , it was held On the material on record we agree with the High Court that it has number been shown that the result of the election had been materially affected by the casting of votes by persons whose names were added to the electoral roll on Apirl 27, 1968 and the alleged number-voting of 15 former electors whose names had been deleted. Upon companysidering the pleadings in the election petition this Court opined The High Court was rightly impressed by the omission of any allegation that all or majority of the persons whose names were included in the electoral roll for the first time in the evening of April 27, 1968, were the supporters of respondent No. 1 in the election. The learned companynsel has number been able to show us any evidence which might indicate how many of the first preference votes companynted in favour of respondent No. 1 were polled at Jamshadpur, Adityapur or Jugsalai respectively. On the facts and the pattern of voting it is impossible to say that there was any substantial number of votes companynted in favour of respondent No. 1 which were void while those companynted in favour of the petitioner were of the original electors. In Paokai Haokip supra this Court in numberuncertain terms held that if there existed a lacuna in the legislation, it is for it to provide for a remedy stating In our opinion, the decision of the learned Judicial Commissioner that the election was to companytravention of the Act and the Rules was companyrect in the circumstances of this case but that does number alter the position with regard to s. 100 1 d iv of the Act. That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected. How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate companyld number be avoided. Chhedi Ram supra was decided in somewhat peculiar situation. An election petition was filed on the ground that a numberination of one Moti Ram had been improperly accepted. The winning candidate obtained 17.822 votes and the appellant herein got 17,449 votes leaving a margin of 373 votes. The said Moti Ram secured 6710 votes. The election petition was filed that Moti Ram was number entitled to seek election from the reserved companystituency being Kahar by caste and number a member of the Scheduled Caste. In the peculiar fact and circumstances of this case and in particular having regard to the fact that 6710 votes obtained by Moti Ram were almost 20 times the difference between the number of votes secured by and successful candidates and the candidate securing the next highest number of votes it was held an impossible burden of proof cannot be thrown upon the appellant therein. This Court observed The number of votes secured by the candidate whose numberination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate - it was a little over one-third. Surely, in that situation, the result of the election may safely be said to have been affected. The Bench while agreeing with the observation of Ghulam Hasan, J. in Vashit Narain Sharma supra , however, opined It does number, however, mean that whatever the number of wasted votes and whatever the margin of differene between the number of votes secured by the successful candidate and the number of votes secured by the next highest candidate, the companyrt would invariably hold that the result of the election had number been materially affected. In an appropriate case having regard to the margin of difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and the proportion which such margin bears to the wasted votes, it is permissible for the companyrt to hold that the burden of proving that the result of the election has been materially affected has been discharged. Chhedi Ram supra , therefore, is number a decision which can be said to be an authority for the proposition that the number of votes which were liable to be rejected would itself be a barometer for the purpose of arriving at a companyclusion that the burden of the election petitioner to prove the legal requirement of Section 100 1 d of the 1951 Act stands discharged. The said decision was rightly held to have been rendered in the peculiar fact situation of that case in Shiv Charan Sing , supra and Santosh Yadav supra on, thus, does number companystitute a binding precedent. In Santosh Yadav supra this Court held The learned Senior Counsel for the appellant placed heavy reliance on Chhedi Ram v. Jhilmit Ram, 1984 2 SCC 281 AIR 1984 SC 146 and submitted that the ratio of the decision squarely applies to the present case and should govern the decision thereof. It was submitted that in Chhedi Ram case 1984 2 SCC 281 AIR 1984 SC 146 the candidate whose numberination was improperly accepted had obtained 6710 votes which was almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes. So also the number of votes secured by the candidate whose numberination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate - a little over l/3rd. The learned Senior Counsel submitted that on availability of these twin factors it was held by this Court that the result of the election might safely be said to have been affected while the case of the present appellant stands on a much better footing inasmuch as the number of votes secured by Shri Naresh Yadav is almost 59 times of the margin between the votes secured by the appellant and the respondent. At the first blush the submission appears to be attractive but is found to be devoid of merit on closer scrutiny. Chhedi Ram case 1984 2 SCC 281 AIR 1984 SC 146 came up for the companysideration of this Court at least on three occasions. In Shiv Charan case 1988 2 SCC 12 AIR 1988 SC 637, Tek Chand case 2001 3 SCC 290 2001 SCC LS 555 and J. Chandrasekhara Rao v. K Jagapathi Rao, 1993 Supp. 2 SCC 229 this Court has held that Chhedi Ram case 1984 2 SCC 281 AIR 1984 SC 146 rested on its own facts and did number overrule the earlier decisions of this Court, namely, the decisions in Vashist Narain Sharma case AIR 1954 SC 513 and Samant N. Balkrishna case 1969 3 SCC 238 AIR 1969 SC 1201. In Chhedi Ram case 1984 2 SCC 281 AIR 1984 SC 146 number only the proportion of wasted voted was 20 times of the margin, there were six candidates in all in the election fray. The Court formed an opinion that a reasonable probability was raised in favour of holding that the result of the election had been materially affected. The decision in Chhedi Ram case 1984 2 SCC 281 AIR 1984 SC 146 does number set out detailed facts and circumstances and the nature of the evidence adduced which may have persuaded the Court in arriving at a finding in favour of the election petitioner. In view of the earlier decisions of this Court existing before Chhedi Ram case 1984 2 SCC 281 AIR 1984 SC 146 was decided, it cannot be held that merely because the number of wasted votes bears a high degree of proportion to the margin of votes between the winning candidate and the next highest candidate, an inference must always be drawn that the result of the election was materially affected insofar as the returned candidate is companycerned. There must be definite evidence available before the companyrt enabling an inference being drawn as to how the wasted votes would have been distributed amongst the companytesting candidates. The companyrt cannot companyjecturise or return findings on surmises. The view taken by this Court in Vashit Narain Sharma supra has companysistently been followed also in J. Chandra Sekhara Rao, Uma Ballav Rath Smt. , Tek Chand and a recent decision of this Court in Harsh Kumar v. Bhagwan Sahai Rawat and Others, 2003 6 SCALE 599. The appellant herein has number been able to show that names of how many persons were included after 3 p.m. on 23.4.2001 and how they have exercised their right of franchise. He has also failed to show by adducing any evidence that those persons whose names had been omitted would have voted for the second respondent. The least the appellant companyld do was to file an appropriate application before the Tribunal praying for inspection of ballot papers to find out the void votes which had been accepted so as to enable the High Court to arrive at a companyclusion how casting of such void votes affected the outcome of sch election. Further for inspection of ballot papers, the election petition must make out a strong prima facie case, only after setting out material facts in the Election Petition and leading evidence to that effect. The learned companynsel, however, would submit that such an application was number necessary to be filed as it was the duty of the Court to issue such directions. Reliance in this companynection had been placed on . Vikheshe Sema supra . In that case such an application was filed but numberorder had been passed in that situation. The fact of the matter obtaining therein was absolutely different.

JUDGEMENT 1995 SUPP. 6 SCR 77 The Judgment of the Court was delivered by N. RAY, J. Leave granted. Heard learned companynsel for the parties. The Appeals arising out of Special leave petition Civil Nos. 6912 and 6914 of 1994 which have been preferred against the order of the Division Bench of the Calcutta High Court passed on the Review Application for recalling the order dismissing Appeal No. 619 of 1992 arising out of Suit No. 531 of 1981 instituted in the ordinary original civil jurisdiction of the Calcutta High Court. The appeals arising out of Special leave petition Civil Nos. 6254 and 6913 of 1994 are directed against the order passed by the Division Bench of the Calcutta High Court on the Review Application for setting aside the order passed in Appeal No. 410 of 1992 arising out of an order refusing to grant extension of time to effect amendment of plaint in Suit No. 531 of 1981. For the purpose of appreciating the rival companytentions of the parties in these appeals, the relevant facts relating to the aforesaid Suit No. 531 of 1981 and two appeals being Appeal Nos. 619 and 410 of 1992 arising out of Suit No. 531 of 1981 are to be numbered as hereunder. There was an agreement on September 21, 1978, for sale of Property No. 8A. Burdwan Road, Calcutta, for a companysideration of Rs. 2 lacs between the plaintiffs and the defendants. The agreement was signed in the Office of Solicitors of the defendants-Vendors, namely. M s. Khaitan Co. The plaintiff No. 1 was already in possession of the said property. Pursuant to such agreement, the plaintiff had paid earnest money by cheque on August 28, 1978. On January 15. 1979, a further sum of Rs. 15,000 was paid by the plaintiff No. 1 by cheque. The Draft Deed of Conveyance was duly approved by the Solicitors of the vendors. The Vendors made an application on June 23, 1980 for permission for sale in favour of the plaintiffs before the authorities under the Urban Land and Ceiling Act. On July 1, 1981, the Solicitors of the vendors, namely, M s. Khaitan Co. informed the solicitors of the plaintiffs that the permission to sale had been refused by the authorities under the Urban Land and Ceiling Act. The Vendors, however, transferred the said premises No. 8A. Burdwan Road, in favour of M s. Kabari Pvt. Ltd. after obtaining permission from the Urban Land and Ceiling authority. The plaintiffs, namely, Shivanath Sharoff Ors., filed the suit for specific performance of the agreement in the ordinary original civil jurisdiction of the Calcutta High Court being Suit No. 531 of 1981. In the said suit, an application for interim injunction restraining the defendants, namely, the Vendors from dealing with or disposing or the said premises was made and an ad interim order was passed on such application for interim injunction in favour of the plaintiff. On July 20, 1981 the interlocutory application appeared as New Motion when the defendants Vendors appeared and submitted before the Court that the said premises No. 8A, Burdwan Road, had already been transferred to a third party, namely. M s. Kabari Pvt. Ltd. It was also companytended by the defendants that the agreement of sale dated September 21, 1978 in favour of the plaintiffs ceased to exist due to refusal to sell the said property by the authorities under the Urban Land and Ceiling Act. The defendants Vendors also stated that by four separate deeds of companyveyance all dated July 6. 1981 the said premises had been companyveyed in favour of the said M s. Kabari Pvt. Ltd. On March 8, 1982, the plaintiffs made an application in the said Suit No. 531 of 1981 for amendment of the plaint seeking to implead M s. Kabari Pvt. Ltd. and also to effect other amendments in the body and prayer of the plaint. On June 1, 1982. M s. Kabari Pvt. Ltd. affirmed an affidavit and filed the same in Court. On July 9, 1982, the Court after hearing the parties including M s. Kabari Pvt. Ltd. allowed the application for amendment of plaint and the added respondent, namely, the said M s. Kabari Pvt. Ltd. was restrained from alienating or encumbering the disputed premises. On July 14, 1982, fresh writ of summons was directed to be issued for service on the added respondent, namely, M s. Kabari Pvt. Ltd. It is the case of the plaintiffs that the plaintiffs by their letter requested their Solicitors M s. T. Banerjee Co. to companyply with the orders passed by the Court for effecting service upon the added respondent. It is the further case of the plaintiff that on July 28, 1982, the plaintiffs also requested M s. T. Banerjee Co. to carry out the amendment and to serve the writ of summons. It may be stated here that after purchasing the suit property M s. Kabari Pvt. Ltd. filed a suit for eviction of the plaintiffs from the suit premises before the learned Subordinate Judge, Allbore. By an order dated September 22, 1982, the said suit was transferred to the High Court for disposal and the same is pending before the High Court. In March, 1986, M s T. Banerjee Co. the Solicitors of the plaintiffs wrote a latter to the Inspecting Assistant Commissioner of Income tax on behalf of the plaintiffs that the entire matter relating to the transfer of the suit premises to Ms. Kabari Pvt. Ltd. was subjudice and pending decision of the Calcutta High Court. It is stated that Mr. Debashis Mukherjee, Advocate and Partner of M s. T. Banerjee Co. who was dealing with the said Suit No. 531 of 1981 for the plaintiffs died on November 15, 1990. On June 25, 1991, the suit appeared for scrutiny before the Senior Master on the original side of the Calcutta High Court and an Assistant of M s. T. Banerjee Co. appeared before the Senior Master and the matter was adjourned to July 11, 1991. Mr. Khanna, Assistant of M s. T. Banerjee Co. again appeared on behalf of the plaintiffs before the Senior Master on July 11, 1991 and prayed for time. Thereafter, on August 8, 1991 the suit again appeared for scrutiny before the Senior Master and Mr. Sunil Mitra of M s. Banerjee Co. appeared for the plaintiffs before the Senior Master and prayed for three weeks time. The learned Advocate on behalf of M s. Kabari Pvt. Ltd. also appeared and the matter was adjourned till September 3, 1991. According to the plaintiffs. M s T. Banerjee Co. orally informed the plaintiff on August 8, 1991 that the suit had appeared in the scrutiny list. A letter to that effect was also written .by M s. T. Banerjee Co. to the plaintiffs and according to the plaintiffs such letter was received by the plaintiffs on August 14, 1991. After receiving oral information from M s. T. Banerjee Co. the plaintiffs wrote on August 9, 1991 to M s. T. Banerjee Co. that the plaintiffs had number been informed about the earlier order passed on July 19, and July 14, 1982. In the said letter, the plaintiffs expressed surprises and dissatisfaction as proper steps had number been taken to effect amendment of the plaint. On September 3, 1991, the said suit appeared for scrutiny before the Senior Master but since numbersitting had taken place on that date, the matter was preferred till September 11, 1991. On September 11, 1991, M s. T. Banerjee Co. requested the plaintiffs to call on their office for perusal of the draft application prepared by the learned companynsel and such application was affirmed. On September 26, 1991, the suit appeared before the Senior Master but numberody appeared for the plaintiffs. The learned Advocate appearing for M s. Kabari Pvt. Ltd. However, submitted that the suit should be directed to be placed in the special list. Accordingly, an order was passed for placing the suit in the special list. M s. T. Banerjee Co. wrote to the plaintiffs on September 26, 1991, that the said suit appeared in the scrutiny list and the same would be placed in the special list for scrutiny. On September 10, 1991, the plaintiffs affirmed an application for extension of time to carry out the amendment and on October 10, 1991 such application was moved in Court. It may be stated that M s. T. Banerjee Co. acted as Advocate on Record for the plaintiffs in companynection with the application for extension of time to carry out the amendment. On December 20, 1991 M s. T. Banerjee Co. informed the plaintiff that the application had been adjourned till January 20,1991. The said application for extension of time to carry out Amendment was, however dismissed by the Court on March 13, 1992. The plaintiffs informed their Solicitors M s. T. Banerjee Co. on March 17, 1992 that the steps should be taken to prefer appeal. On May 27, 1992, an appeal against order dated March 13, 1992 dismissing the application for extension of time to effect amendment was filed. Such appeal was numbered as appeal No. 410 of 1992. Oh June 18, 1992, the Registry of the High Court issued numberice to M s. T. Banerjee Co. informing that the suit should be set down in the special list of the Honble Judge taking interlocutory matters from July 14, 1992. Such numberice had been received by M s. T. Banerjee Co. The suit appeared before the Court. M s. Kabari Pvt. Ltd. also appeared through the learned companynsel and the suit was dismissed. It may be mentioned here that the minutes of the Court proceeding indicate that Mr. Ranjanam Guha, learned Advocate appeared for the plaintiffs. The plaintiffs were also informed by M s. T. Banerjee Co. that the suit appeared in the special list and the prayer for a direction that the suit should go out of the special list was opposed by the defendants including M s. Kabari Pvt. Ltd. and the suit was dismissed. The plaintiffs instructed M s. T. Banerjee Co. their Solicitors to prefer an appeal against the order of dismissal of the suit. Appeal No. 619 of 1992 was filed against the said order dated July 14, 1992 dismissing the suit. Both the said appeals, namely, appeal No. 410 of 1992 appeal No. 619 of 1992 were, however dismissed by a companymon judgment by the Division Bench of the Calcutta High Court on February 16, 1993. At this stage the plaintiffs changed their Solicitors and M s. L.F. Aggarwala and Co. was engaged as their Solicitors. On April 17, 1993, the plaintiffs filed two special leave petitions before this Court. Special leave petition C No. 8083 of 1993 was directed against dismissal of the appeal No. 410 of 1992 arising out of the order refusing to extend that time to effect amendment and Special leave petition No. 8084 of 1993 was directed against dismissal of the appeal No. 619 .of 1992 which arose out of the order of dismissal of Suit No. 331 of 1981 . It may be stated here that M s. L.P. Agarwalla Co. acted as Advocates for the plaintiffs in both the said Special Leave Petitions. The plaintiffs thereafter filed Review Petitions on June 17,1993 before the Calcutta High Court for recalling the orders dismissing Appeals Nos. 410 of 1992 and 619 of 1992 and M s. L.P. Agarwalla Co. acted as Solicitors for the plaintiffs petitioners. It is to be numbered here that the plaintiffs did number mention in the Review Applications that this Court had already been moved against the said orders of dismissal of the appeals by filing the aforesaid special leave petitions. The plaintiffs did number make any attempt to get the said special leave petitions taken up for hearing. On the companytrary, the learned companynsel for the petitioners in the said special leave petitions mentioned the matter on several occasions for adjournment. As a result, the special leave petitions were number even listed for hearing on several occasions. It was only after the Review Petitions were allowed by the Calcutta High Court on March 18, 1994, the special leave petitions were allowed to be dismissed as withdrawn on the prayer of the petitioners. Mr. Nariman, learned senior companynsel appearing for the petitioners in Special leave petition C Nos. 6913-6914 of 1994 has very strongly companytended that the plaintiffs respondents Shivnath Shroff and others filed the said Suit No. 531 of 1981 for specific performance of companytract in the High Court and on the prayer of the plaintiffs to amend the body of the plaint and also the prayer portion, the High Court allowed the prayer as far back as on July 9, 1982. On July 14, 1982-fresh writ of summons was directed to be issued for service on Kabari Pvt. Ltd. The plaintiffs in an attempt to delay the hearing of the suit and in furtherance of the evil design in adopting dilatory tactics, deliberately failed and neglected to take steps for effecting amendment of the plaint. The Suit appeared for scrutiny before the Senior Master of the High Court Original Side on June 25, 1991 and thereafter on subsequent dates. But the plaintiffs did number take steps for effecting amendment even then. Mr. Nariman has submitted that even if it is accepted that Sri Debashish Mukherjee, Advocate and partner of M s T. Banerjee Co. Solicitors was in charge of the said Suit No. 531 of 1981 and he having died on November 15, 1990, appropriate steps in effecting amendment of plaint companyld number be taken by the plaintiffs on earlier occasions, there cannot be any reasonable explanation for the failure on the part of the plaintiffs and their Solicitors in number taking steps at least from June 25, 1991 when the matter started appearing on various dates before the Senior Master for scrutiny. It is number the case that because of death of Sri Mukherjee who was incharge of the said suit, the Solicitors of the plaintiffs lost sight of the suit. The plaintiffs as a matter of fact were represented either by an Assistant to the Solicitors or by an Advocate appearing for the plaintiffs before the Senior Master. Admittedly, the plaintiffs were informed by their Solicitors on August 8, 1991 that for number taking steps in effecting amendment, the suit was appearing before the Senior Master for scrutiny. Even then, the plaintiffs and their Solicitors were number at all diligent to take appropriate steps immediately. It was only on September 30, 1991 an application for extension of tune to carry out amendment was affirmed by the plaintiffs and only on October 10, 1991 such application was moved in Court. The Court, however, rightly rejected the said application on March 13, 1992 as the plaintiffs failed to satisfy the Court about the bona fide of the plaintiffs in number taking steps for effecting amendment from July, 1982, namely, for about 10 years. Mr. Nariman has submitted that the suit thereafter appeared in Special List. On July 14, when the suit appeared in Special List, Ms. Ranjanam Guha, learned Advocate appeared for the plaintiffs. The Court dismissed the suit for gross negligence on the part of the plaintiffs. Mr. Nariman has submitted that it is quite evident that the Single Bench of the High Court rejected the plea of the plaintiffs that there was numberlaches and negligence on their part and for negligence and laches on the part of their solicitors the plaintiffs should number be victimised. Mr. Nariman has submitted that although special leave petitions are number statutory appeals and exercise of jurisdiction under Article 136 of the Constitution is discretionary with this Court, the fact remains that the orders of dismissal of the appeals by the High Court were assailed before a superior companyrt by filing special leave petitions. From the judgment disposing of the review applications, it does number appear that the attention of the High Court was drawn that to the fact that prior to the filing of review applications, special leave applications had been filed before this Court and such applications had been pending disposal. Mr. Nariman has submitted that if the petitioners had specifically stated in the review petitions that this Court had already been moved by filing special leave petitions and such applications were pending, in all probability, the High Court would number have entertained the review applications for disposal on merits. Pendency of two parallel proceedings for the same relief namely setting aside the orders dismissing the said appeals - one before the Apex Court by way of special leave petitions and the other before the High Court by way of review applications cannot be encouraged because of the possibility of inconsistent findings by the companyrts. Mr. Nariman has submitted that review under Order 47 Rule 1 of the Code of Civil Procedure must be companystrued in a wider sense keeping in mind the underlying principle involved, that before making review applications, numbersuperior companyrt has been moved for getting the self same relief. He has submitted that gross injustice has been meted out to the defendants-petitioners by allowing reviewing applications despite grossest negligence and laches on the part of the plaintiffs in number carrying out the proceedings of the said suit diligently but indulging in dilatory tactics. He, therefore, submits that the special leave petitions should be allowed and impugned orders should be set aside. Mr. Sanghi the learned senior companynsel appearing for M s. Kabari Pvt. Ltd. in the order two special leave petitions has supported Mr. Nariman in his submission both on facts and law. Mr. Sanghi has submitted that the plaintiffs-respondents cannot be permitted to companytend that they are number required to keep vigil about the progress of the suit and carriage of the proceedings in companynection with the same. The plaintiffs are educated businessmen. They stay in Calcutta itself. It is number the case of the plaintiffs that Sri Debashish Banerjee, a partner of their solicitors T. Banerjee and Company who is stated to have been dealing with their case in the High Court, had wrongly informed the plaintiffs that all necessary steps for effecting amendment of plaint had been taken and on such representation they had numberoccasion to cause any enquiry in the matter. Mr. Sanghi has submitted that the letter dated August 9, 1991 stated to have been written by the plaintiffs to their solicitors T. Banerjee and Company on getting oral information from the solicitors on August 8, 1991 that the suit had been placed in the scrutiny list on account of failing to take steps in effecting amendment of the plaint, should number be accepted to have been bona fide written on 9th August. Such letter, according to Mr. Sanghi, was later on fabricated for the purpose of showing that the plaintiffs solicitors had let them down by keeping them in darkness about the progress of the suit. Mr. Sanghi has very strongly companytended that the role of the plainfiffs even when admittedly they came to know that their solicitors miserably failed to take proper steps in the carriage of proceedings in the suit and the solicitors also failed to keep them informed about the developments of the suit, is far from being satisfactory. The plaintiffs ought to have ensured either by personally attending to the matter or by sending some of their officers, that steps for enlarging the date for taking steps in effecting amendment of plaint was taken immediately. It is an admitted position that the matter appeared before Senior Master on a number of occasions and only on October 10, 1991 an application for extension of time was made by the plaintiffs, which was rightly rejected by the Court. Mr. Sanghi has also submitted that the plaintiffs did number change their solicitors even when the application for extension of time was dismissed and later on when the suit itself was dismissed. Admittedly the same solicitors namely Messers T. Benerjee and Company were retained for preferring both the said appeals. It was only when both the appeals were dismissed by the High Court, the plaintiffs changed their solicitors and Messers L.P. Agarwalla and Company was engaged at their solicitors. Mr. Sanghi has submitted that such change was made designedly to put blames on their previous solicitors and to make out a false case of alleged discovery of some relevant facts relating to the steps taken by their previous solicitors so that a case for filing review application may be made out. Mr. Sanghi has submitted that M s. Kabari Private Limited had purchased the property long back. They are keen to get possession of the property. The suit for eviction of the plaintiffs who are in possession of the disputed property had been transferred to High Court because of the said title suit instituted by the plaintiffs in the High Court claiming specific performance of companytract was pending in the High Court. Mr. Sanghi has submitted that M s. Kabari Private Limited has been suffering serious prejudice on account of frivolous litigation and proceedings arising out of it at the instance of the plaintiffs for prolonging their illegal occupation of the suit property. Mr. Sanghi has submitted that the plaintiffs knew well that there was numbercase for review of the orders dismissing the said appeals. Hence, as a last resort they preferred special leave petitions before this Court assailing the orders dismissing the said appeals. He has submitted that in the facts of the case, it is quite apparent that later on, applications for review had been filed before the High Court on false and fabricated premises. In the review petitions, the plaintiffs deliberately suppressed the fact that they had already approached the Apex Court for assailing the orders of dismissal of the appeals by preferring special leave petitions. Mr. Sanghi has submitted that even though from the degree dismissing the suit by the High Court, a litigant can number maintain an appeal as a matter of right but an appeal certainly lies to this Court, subject to grant of leave by the High Court or grant of special leave by this Court. He has submitted that the expression from which an appeal is allowed appearing in clause a of Order 47 Rule 1,C.P. Code must be companystrued liberally so that appeal preferred before this Court by filing special leave petitions to admit the appeal for assailing the judgment or order of a companyrt inferior to it operates as a bar to the maintainability of a review application filed subsequently before the High Court for the same purpose namely for assailing the impugned judgment. The salutary principle which bars two parallel proceedings initiated before two different forums namely the companyrt which would review its own judgment and the superior companyrt which would companysider the companyrectness of the said judgment would be defeated if the expression appeal is allowed is given a narrow interpretation thereby limiting it to an appeal which may be preferred as a matter of right without requiring any leave to be granted for preferring such appeal. Mr. Sanghi has submitted that the plaintiffs in this case have exercised option to assail the impugned judgments by preferring appeals before this Court by granting special leave instead of getting the said judgments reviewed by the High Court. In such circumstances, the review applications must be held as number maintainable and should be treated as dismissed. Mr. Sanghi has submitted that the plaintiffs are guilty of a sharp practice in suppressing the factum of presentation of the special leave petitions before this Court prior to the filing of the review applications before the High Court by number mentioning this important fact in the review applications. He has, therefore, submitted that the impugned orders passed by the High Court in allowing the review application should be dismissed with exemplary companyt. Mr. Salve, the learned Senior companynsel appearing for the plaintiffs respondents, however, refuted the companytentions of both Mr. Nariman and Mr. Sanghi. Mr. Salve has submitted that the suit was instituted in the ordinary original jurisdiction of the Calcutta High Court. The High Court has framed special rules of procedure for the carriage of the proceedings in the suit instituted in the original side. Precisely for the said reason, the service of a reputed solicitors firm namely Messers T. Banerjee and Company was requisitioned by the plaintiffs. The Plaintiffs and their predecessors had close association with Messers T. Banerjee and Company and the plaintiffs had reposed trust and companyfidence in such firm in the matter of carriage of the proceedings in the said suit. The companyrt in its experience can take numberice of the fact that disposal of suit in the High Court takes several years. Hence, it is neither necessary number practicable to cause enquiries every number and then about the progress of the suit. Moreover when a reputed and experienced solicitors firm had been engaged by the plaintiffs, there was enough justification on their part to depend on such firm. The criticism that plaintiffs being educated businessman staying in Calcutta itself should have ensured either by themselves or by their officers that proper steps in the suit were being taken in the suit, is number proper and justified. Mr. Salve has submitted that plaintiffs on companying to learn that the suit was placed in scrutiny list for number taking proper steps in effecting amendment expressed their shock and anguish for failure to take appropriate steps in their letter dated August 9, 1991 addressed to their solicitors. Because of the long association with the said firm the plaintiffs did number change the solicitors and retained their services till the hearing of the said appeals. But as it finally appeared to the plaintiffs that solicitors were number only guilty of serious laches but were numberlonger dependable, they change the solicitors firm and Messers L.P. Agarwalla and Company were engaged as their solicitors. Mr. Salve has submitted that all relevant facts companyld number be placed before the Court at the time of disposal of the appeals. But with the change of the solicitors and on obtaining further materials in possession of the old solicitors, review applications had been made by drawing attention of the Court to the facts and circumstances which amply demonstrated that the plaintiffs were number guilty of laches and negligence but they fell victim to the laches and negligence on the part of their previous solicitors and the Court, on companysideration of relevant facts, has felt that the unfortunate litigants should number suffer for laches and negligence of their solicitors and keeping the paramount companysideration of ends of justice, allowed the review applications. Mr. Salve has also submitted that although in the review applications the factum of presenting the special leave petitions before this Court was number specifically mentioned but he has mentioned that he is instructed to submit that such fact was made known to the companyrt before disposal of the said review applications. He has submitted that the allegations of sharp practice being resorted to by the plaintiffs and deliberate suppression of material facts namely number disclosure of presentation of special leave petitions before filing review applications and pendency of such petitions are unfortunate and number companyrect out the same have been made to cause prejudice against the plaintiffs respondents. Mr. Salve has submitted that special leave petitions under Article 136 of the Constitution stand entirely on a different footing. Exercise of jurisdiction of this Court under Article 136 is absolutely discretionary and number as a matter of companyrse or must. In this companynection, Mr. Salve has referred to the decision of this Court in Collector of Central Excise v. M s Standard Motor Products, 1989 2 SCC 303 wherein this Court has indicated that jurisdiction exercised by this Court under Article 136 of Constitution in the matter of granting leave to appeal before it being discretionary, stands as a separate class. Mr. Salve has submitted that application for special leave, therefore, cannot be equated with an appeal as allowed since companytemplated under Order 47 Rule l a C.P. Code as sought to be companytended. Mr. Salve has submitted that interpretation of procedural law which debars availing companyrts companysideration for furtherance of the cause of justice should be strictly companystrued. He has submitted that review applications presented before the High Court after filing a special leave petitions were maintainable and companytentions to the companytrary should number be companyntenanced. Referring to Order 6 to Rule 18 C.P. Code Mr. Salve has submitted that even if it is assumed that the plaintiffs failed to bring about amendment of the plaint within time, the suit should proceed with unamended plaint but dismissal of the suit cannot be justified. Mrs. Salve has submitted procedural law must be applied for furtherance of justice and number for its hindrance. In the instant case the High Court felt that the suit should number have been dismissed in the special facts of the case and therefore allowed the review applications. Such order, in any event, does number call for interference by this Court by granting special leave. He, therefore, submits that special leave petitions should be dismissed. Ms. Ganguli, learned senior companynsel appearing for the plaintiff-respondents in one of the appeals arising out of S.L.P. No. 6914 of 1994 has also refuted the companytentions made by Sri Nariman and Sri Sanghi. He has strongly companytended that the suit of the plaintiffs did number deserve to be dismissed on account of failure-by the solicitors to take appropriate steps in effecting the amendment of the plaint. Mr. Ganguli has submitted that the plaintiffs being number companyversed with the special procedures in the carriage of proceedings in the suit in the ordinary original civil jurisdiction of the Calcutta High Court engaged a reputed firm of solicitors. It is evident that the plaintiffs companyld number afford taking risk of getting the suit dismissed by following dilatory tactics because the stake in the suit is quite high for the plaintiffs. Mr. Ganguli has submitted that unfortunately the appeals were dismissed by the High Court by number appreciating that the laches and negligence were number directly attributable to the plaintiffs but they fell victim to laches and negligence of their solicitors. He has also submitted that after the change of the solicitors, the new solicitors found other relevant facts and circumstances which number being made known to the plaintiffs, companyld number placed for companyrt a companysideration earlier. Such facts amply demonstrate the bonafide on the part of the plaintiffs in proceeding with the suit. Mr. Ganguli has also submitted that the High Court even though dismissed the appeals, companysidered such further materials in disposing review applications and became satisfied that the dismissal of the appeals was number warranted and the plaintiffs did number deserve to be victimised. The review applications were accordingly allowed. Mr. Ganguli has submitted that the Court has always an anxiety to ensure that the justice does number get defeated in the vortex of technicality of procedural law. Mr. Ganguli has also submitted that application for special leave to appeal before this Court cannot be treated as preferring an appeal for the purpose of Order 47 Rule 1 of the Code of Civil Procedure. He has submitted that the remedy sought by making an application under Article 136 of the Constitution before this Court is an extra ordinary remedy and number a remedy by way of preferring an appeal before this Court. In this companynection, Mr. Ganguli has referred to a decision of this Court in Laxman Maratrao Navakhare v. Keshavrao, 1993 2 SCC 270. In the said decision, it has been held by this Court that Article 136 1 of the Constitution companyfers on the Supreme Court overriding and extensive powers of granting special leave to appeal. It does number companyfer a right to appeal. It companyfers a right to apply for special leave to appeal which is in the discretion of the Court. The discretionary power under Article 136 cannot be companystrued as to companyfer a right of appeal where numbere exists. Although the power under Article 136 1 is unfettered, but is cannot be held that after having entertained a special leave petition against any final or interlocutory order, the Supreme Court companyverts itself into a companyrt of appeal for the hearing of the dispute involved. Mr. Ganguli has submitted that as the special leave petition stands entirely on a different footing and it cannot be deemed to be an appeal before a superior companyrt, the plaintiffs had justification in number mentioning the factum of presenting special leave petitions before this Court in review applications. Such number-disclosure of the factum of presenting special leave petitions before filing the review applications, therefore, cannot be held to be a sharp practice designed to keep back from the High Court a relevant fact which was required to be companysidered in the companytext of maintainability of the review application. Mr. Ganguli has submitted that when the High Court became satisfied that gross injustice was meted out the plaintiffs for laches and negligence number attributable to them and on such companysiderations restored the appeal by allowing the review applications, this Court, in its discretionary jurisdiction, should number interfere with the impugned order more so when such order has advanced the cause of justice instead of hindering the same. Mr. Ganguli has, therefore, submitted that the appeals should be dismissed. Having companysidered the facts and circumstances of the case and the orders dismissing the appeals and also the impugned Judgment allowing the review applications by the High Court and having given our anxious companysideration to the respective companytentions of the learned Senior Counsel forcefully placed before us, it appears to us that the plaintiffs failed and neglected to take proper steps in the carriage of proceedings of the suit. The plaintiffs failed Suit No. 531 of 1981 in the ordinary original civil jurisdiction of the Calcutta High Court. An application for interim injunction was made by the plaintiffs for restraining the defendants, namely, the vendors of the suit property from dealing with or disposal of the suit premises and on such application, an ad interim order was passed in favour of the plaintiffs. On July 20, 1981, the interlocutory application appeared as New Motion when the defendants appeared and submitted before the High Court that the suit premises had already been transferred to a third party, namely M s Kabari Pvt. Ltd The defendants vendors also disclosed to the Court that by four separate deeds of companyveyance all dated July 6, 1981, the suit premises had been companyveyed to Ms. Kabari Pvt. Ltd. As the property in question had been companyveyed prior to the institution of the suit, the plaintiffs felt the need to implead M s Kabari Pvt. Ltd. also as a defendant in the said suit and they made an application for amendment of the plaint for incorporating facts number pleaded and also for moulding the prayer. As far back as in July 1982, the Court, after hearing the parties, allowed an application for amendment of the plaint and restrained M s. Kabari Pvt. Ltd. from alienating or encumbering the disputed premises. Pursuant to the leave granted for amendment of the plaint, a writ of summons was directed to be issued on July 14, 1982 to M s Kabari Pvt. Ltd. It may be numbered here that M s. Kabari Pvt. Ltd. instituted a suit for eviction of the plaintiffs in the Court of learned Subordinate Judge at Alipore because the plaintiffs were in possession of the disputed property as tenants. In view of the pendency of the said Suit No. 531 in the ordinary original civil jurisdiction of the Calcutta High Court wherein the purchaser M s Kabari Private Limited was restrained from alienating and encumbering the disputed property, the suit for eviction was also transferred to the High Court. Such suit is also pending in the High Court. It is quite apparent, in the facts of the case, that the amendment which was sought for by the plaintiffs was required to be incorporated otherwise numbereffective relief companyld be given to the plaintiffs in the said suit No. 531 of 1981. For effective relief in the said suit, the transfer of the disputed property in favour of M s. Kabari Pvt. Ltd. is required to be set aside. Otherwise, numberdecree for specific performance of companytract for selling the said property in favour of the plaintiffs can be passed. In the aforesaid facts, the amendment of the plaint is essential for the maintainability of the suit. The companytention that the suit was number required to be dismissed but the same may proceed without the amendment is misconceived and without any substance. Even if it is accepted that the plaintiffs having engaged a reputed firm of solicitors had justification in proceeding with the view that the carriage of proceedings required to be taken in the suit must have been taken properly by their solicitors, there was numberoccasion for the plaintiffs to depend on the solicitors when on August 8, 1991 the plaintiffs had admittedly been informed by the solicitors that the suit had been placed in the scrutiny list for number taking appropriate steps in effecting the amendment during the long span of ten years. It is an admitted position that the plaintiffs were number only fully aware of such gross laches and negligence but according to the plaintiffs, they being aware of such laches and negligence expressed shock and anguish for the inaction on the part of their solicitors. After August 8, 1981 the said suit appeared before the Senior Master of the High Court on a number of occasion but even then application for extension of time for effecting amendment was number made by the plaintiffs immediately. It is only on October 10,1991, such an application was moved in Court but such application was rightly dismissed by the Court on March 13, 1992. In our view, Mr. Nariman and Mr. Sanghi are fully justified in companytending that when the plaintiffs admittedly came to know that their solicitors miserably failed to take appropriate steps in the suit for which the suit was liable to be dismissed, even then they did number take diligent steps. The plaintiffs also did number change their solicitors even when the suit was dismissed. On the companytrary, they retained the solicitors for the purpose of preferring the appeals, both against the order dismissing the application for extension of time and also against the order of dismissal of the suit itself. The companytention of the learned companynsel for the appellants that the bogey of laches and negligence on the part of the solicitors of the plaintiffs by keeping the innocent plaintiffs in darkness and alleged discovery of further materials only after the change of solicitors has been raised designedly, does number appear to be ill founded. It did number appeal to the High Court that the plaintiffs became victim of the alleged laches and negligence on the part of the solicitors and they had been kept in darkness about such laches and negligence despite their best intention to be diligent and sincere in the carriage of proceedings of the said suit. On a clear finding that the plaintiffs were guilty of gross negligence in the carriage of proceedings in the said suit, both the appeals preferred by the plaintiffs appellants were dismissed by the Division Bench of the High Court. It is quite apparent and evident that in view of clear findings of the High Court about gross negligence and laches of the plaintiffs in dismissing the said appeals. The plaintiffs, as a last resort, filed special leave petitions before this Court and did number think of filing the review applications. Considering the facts of the case, we have numberhesitation to hold that only at a later stage, the plaintiffs filed the review applications before the High Court on false and fabricated premises that after change of the solicitors, they companyld companye to .know about some relevant facts which companyld number be placed before the High Court on earlier occasion and accordingly review applications had been filed. It appears to us that at numberpoint of time, the plaintiffs intended to change the solicitors and the said solicitors were retained number only for the purpose of preferring the appeals but they companytinued to act as solicitors of the plaintiffs till appeals were dismissed on companytest. The companytention of the appellants before us that the plaintiffs designedly changed the solicitors to put forth false and fabricated plea of discovery of some relevant materials only after change of solicitors. In an attempt to make some ground for review applications, is wholly justified. In our view, in any event, all relevant facts companyld be known to the plaintiffs if they had intended to know such facts seriously. There was also numberimpediment to change the solicitors earlier. In the facts of the case, it appears to us that there was numbergenuine occasion for filing the review applications. Such review application based on false and fabricated premises deserved to be dismissed in limine. The impugned order allowing the review applications has occasioned a grave failure of justice. We, therefore, feel numberhesitation in setting aside the impugned order on merits by allowing the appeals. In our view there is force in the companytention of the learned companynsel for the appellants that the expression from which an appeal is allowed appearing in Clause a of Order 47 Rule 1 of the Code of Civil Procedure, should be companystrued liberally keeping in mind the underlying principle involved in Order 47 Rule 1 a that before making the review applications numbersuperior companyrt has been moved for getting the self same relief, so that for the self same relief two parallel proceedings before two forum are number taken.

GYAN SUDHA MISRA, J. Leave granted. This appeal by special leave has been filed against an interim order dated 08.12.2006 passed by the Jaipur Bench of the High Court of Rajasthan in S.B. Civil Writ Petition No. 1072 of 2001 whereby the learned single Judge initiated suo moto companytempt proceeding against the appellant and directed issuance of numberice to him after which a separate Contempt Petition was ordered to be registered against him. This initiation apparently was based on the assumption and impression gathered by the learned single Judge to the effect that the appellant had obstructed the companyrse of administration of justice by ensuring that the interim order of stay dated 22.03.2001 passed by the learned single Judge against implementation of the award of companypensation as also direction to the Registrar General Vigilance to initiate inquiry against the then Judge of the Motor Accident Claims Tribunal, Jaipur, be number implemented. The learned Judge further inferred that this was an attempt on the part of the appellant herein to shield the Judge of the MACT from facing the vigilance inquiry and hence companytempt proceeding has been initiated against the appellant. As the appellant was number a party in the writ petition in the High Court in which companytempt proceeding has been initiated, he sought leave of this Court to file Special Leave Petition which was granted and an order of stay against initiation of companytempt proceeding was also passed by this Court on 19.01.2007. The matter thereafter was heard finally at the admission stage itself with companysent of the companynsel for the parties. At the outset, the appellant assailed the impugned order on the plea that he had joined as Deputy Registrar Judicial in the Jaipur Bench of the High Court of Rajasthan only on 05.01.2005 and the order which is alleged to have been number implemented at the instance of the appellant, is dated 22.03.2001 from which it is clearly established that the initiation of companytempt proceeding alleging number-implementation of the order dated 22.03.2001 on the face of it, was number justified at all since the companymunication by him to the Registrar Vigilance for ascertaining the number of the case as also the date of the order sheet - a companyy of which was to be sent to the Registrar Vigilance , was the numbermal requirement without which the order sheet companyld number have been sent and hence the same would number amount to companytempt of Court. The substantial question of law therefore which emerges for determination in this appeal is whether the learned single Judge of the High Court was justified in initiating suo moto companytempt proceeding against the appellant judicial officer in absence of even prima facie material to the effect that there was at all a case of disobedience to the order of the High Court - much less wilful disobedience and whether issuance of numberice to initiate companytempt proceeding would be justified merely on assumption, speculation and inference drawn from facts without existence of a clear case of wilful disobedience to the order of the High Court so as to treat it as a case of companytempt of Court of civil nature. The details of facts and circumstances of the matter in so far as it is essential for adjudicating the substantial question of law formulated hereinbefore are stated herein as follows A writ petition bearing S.B. Civil Writ Petition No. 1072 of 2001 was filed by an Insurance Company, namely, United India Insurance Company Limited challenging the award passed by the MACT, Jaipur in favour of the claimant Smt. Kaushalya Devi and others. The writ petition came up for hearing before a learned single Judge on 22.3.2001 who was pleased to admit the writ petition and issued numberice to the original claimants and other respondents therein. Simultaneously, an order of stay was also passed in favour of the Petitioner-Insurance Company, directing that there shall be stay of recovery against the award dated 15.01.2001 by which companypensation was awarded to the respondents claimants therein. The learned single Judge was further pleased to direct that a companyy of the said order be sent to the Registrar Vigilance of the High Court who shall look into the matter from the administrative side implying enquiry against the learned Judge, MACT who had passed the award in favour of the claimants respondents. It would be appropriate to highlight at this stage that the Appellant, Shri Dinesh Gupta was number functioning as Deputy Registrar Judicial in the High Court on the said date in the year 2001 as he was posted as Deputy Registrar Judicial at Jaipur Bench in the High Court several years later on 05.01.2005. However, during the intervening period in order to companyply the order of the High Court dated 22.03.2001, the Registrar General Vigilance vide letter dated 20.04.2001, requested for a companyy of the Memo of the writ petition and a companyy of the Award of the MACT, Jaipur dated 15.01.2001 passed in Claim Petition No 1782 of 1999. In response to the same, a certified companyy of the writ petition was sent by the then Deputy Registrar Judicial but in view of Rule 883 of The Rules of the High Court of Judicature for Rajasthan 1952, a request was made to the Registrar General Vigilance to obtain a companyy of the Award from the MACT, Jaipur directly. Thereafter, the Registrar General Vigilance did obtain a certified companyy of the MACT judgment Award from the office of the MACT, Jaipur directly on 25.7.2001 and then vide letter dated 11.01.2002, directed the Deputy Registrar Judicial to inform whether the Writ Petition bearing S.B. Civil Writ Petition No. 1072 of 2001 entitled United India Insurance Company Ltd. Vs. MACT, Jaipur and others had been disposed of or number and in case it was disposed of, a companyy of the order of the Court was directed to be sent to him. This letter was responded by the then Deputy Registrar Judicial who informed that the matter is pending companysideration before the High Court and the next date of hearing in the matter was fixed for 05.04.2002. It was further informed vide letter dated 16.03.2002 that as and when the matter is disposed of, the companyy of the judgment would be sent to him. The Writ Petition however remained pending without further progress even upto the year 2005. Subsequently, on 31.05.2003, the then Presiding Officer of the MACT, Shri S.K. Bansal, R.H.J.S. who had passed the award of companypensation in favour of the respondent-claimant Smt. Kaushalya Devi, retired from service and matter remained sub-judice as already indicated hereinbefore. The Appellant Shri Dinesh Gupta thereafter joined the post of Deputy Registrar Judicial in the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur on 05.01.2005. On 09.05.2005 the Registrar General Vigilance vide companymunication dated 09.05.2005 directed the Deputy Registrar Judicial that the companyy of the required judgment of the High Court passed in the writ petition be sent to the office of the Registrar General Vigilance within 20 days. This letter, however, neither mentioned the case number number the date of the order of the Court which was to be sent to the Registrar General Vigilance which would be evident from the translated version of the said letter which reads as under Ref- Letter of this Office No. 848 dt. 28.6.04 reminder No. 1223 dt. 4.9.04 No.1464 dt. 8.11.04 your Letter No.147 dt. 01.07.04. Subject- For sending companyy of Required Judgment. Sir On the above subject by drawing your attention towards the referred letter, it is ordered that you please take pain to forward the companyy of required Judgment to this office within twenty days from receipt of this letter companypulsorily. Yours truly, SD - REG. GEN VIGILANCE The letter thus merely stated that the Deputy Registrar should take pains to forward the companyy of required judgment and the same be sent to the office of the Registrar General Vigilance positively within 20 days of receipt of the said letter. In response to the aforesaid letter dated 09.05.2005, the appellant traced out the number of the companycerned writ petition and informed the Registrar General Vigilance vide his response letter dated 18.05.2005 that the matter was pending companysideration and as and when it is disposed of, the companyy of the judgment would be sent. Six months thereafter, the Registrar General Vigilance again wrote a letter on 13.12.2005 that the desired judgment be sent positively within 20 days of the receipt of the letter but he again failed to indicate the number of the case in which the judgment was required by him. However, the appellant this time responded to the same by writing to the Registrar Vigilance vide letter dated 22.12.2005, that the writ petition entitled United India Insurance Company Ltd. Vs. MACT, Jaipur City, Jaipur and Ors. had been admitted in which numberice had been issued and recovery of the amount passed by the Award of the MACT had been stayed by the High Court vide order dated 22.03.2001 but the case was still pending in the category of incomplete service matters because the numberice upon the respondent Nos. 2 to 8 was number served and the next date fixed by the Honble Court was 20.02.2006. In the meantime, the claimant Smt. Kaushalya Devi had also filed an application for vacating the order of stay passed by the High Court in the companycerned writ petition i.e. S.B. Civil Writ Petition No. 1072 of 2001 which came up for hearing before the learned single Judge on 16.10.2006. The learned single Judge on this date ordered that as the Presiding Officer Shri S.K. Bansal had retired and was numbermore in service, the order of the Court dated 22.03.2001 directing to companyduct the enquiry by the Registrar General Vigilance against the then Judge of the MACT, Jaipur be treated as closed and numberfurther action need be taken. It was also ordered that this be brought to the numberice of the Deputy Registrar Judicial . The matter the writ petition thereafter came up before the Court on 08.12.2006 for companysidering the application of the claimant for vacating the order of stay passed by the learned single Judge on 22.03.2001. The learned single Judge on this occasion i.e. on 08.12.2006 suddenly inferred that although an order had been passed on 22.03.2001 staying implementation of the award passed in favour of the claimant, yet the companyy of the order and stay had number been sent for companypliance. Hence, it was inferred by the learned single Judge that it appeared to be an attempt on the part of the Officer companycerned to ensure that the Registrar Vigilance should number proceed with the enquiry against the MACT Judge which had been directed by the Court on the judicial side vide its interim order of stay and direction dated 22.03.2001, and this number only amounted to companytempt of the order of the Court dated 22.03.2001, but was an attempt to shield the then MACT Judge Shri S.K. Bansal who had passed the award and later retired from service. The learned single Judge, therefore, observed that this was an attempt on the part of the officer companycerned Deputy Registrar Judicial the appellant herein who had written the letter dated 22.12.2005 to the Registrar Vigilance seeking case number and date of the order which was to be sent to him due to which it was observed by the learned single Judge that it had to be taken numbere of seriously as it was an attempt to overreach the directions of the Court and prevent its companypliance creating obstructions in the administration of justice. The learned single Judge therefore ordered to issue numberice to the then Deputy Registrar Judicial who had sent the letter dated 22.12.2005 enquiring about the case number and the date of the order after tracing out the name and his present designation as to why companytempt proceeding should number be initiated against him and he be number punished for companytempt of companyrt. The learned Judge further ordered that a separate Contempt Petition be registered and numberice be issued to the companytemnor making it returnable within six weeks. The writ petition was ordered to be listed a week thereafter. Since, the appellant Shri Dinesh Kumar Gupta was the Deputy Registrar Judicial on the relevant date i.e. 22.12.2005, a companytempt numberice was served on him which took him by surprise as according to him, he had neither acted in any manner which companyld lead to obstruction to the cause of justice number had role in any manner whatsoever to ensure that the interim order of stay dated 22.03.2001 staying execution of the award be number implemented. Since the order initiating companytempt proceeding against the appellant was bound to affect him, he approached this companyrt seeking permission to challenge the order passed by the learned single Judge initiating companytempt proceeding against him by submitting that numberuseful purpose would be served by filing a reply to the show cause numberice before the High Court as the relevant record although was before the learned single Judge, yet a proceeding for companytempt was initiated against him. On a scrutiny of the aforesaid facts, it is apparent that the learned single Judge has initiated companytempt proceedings against the appellant essentially on impression and assumption that he was instrumental in ensuring that the order of stay passed in favour of the Insurance Company on 22.3.2001 passed in S.B. Civil Writ Petition No. 1072 of 2001 was number implemented and further the letter dated 22.12.2005 by which the appellant herein as the Deputy Registrar Judicial had sought the case number of the writ petition for which the order sheet was to be sent, was treated as an attempt on the part of the Deputy Registrar Judicial causing obstruction in the way of administration of justice. It was further inferred that he had done so in order to shield the then Judge, MACT Shri S.K. Bansal from facing the vigilance enquiry. The grounds relied upon by the appellant for assailing the initiation of companytempt proceedings against him, is first of all based on the technical plea that Section 18 of the Contempt of Courts Act, 1971 has number been taken numbere of by the learned single Judge as in Section 2 c iii , it has been laid down that every case of criminal companytempt is required to be heard and determined by a Bench of number less than two Judges, and therefore, the learned single Judge erred in passing the impugned order dated 08.12.2006 without there being any occasion for the same. The initiation of companytempt proceeding was further challenged on the ground that it is the Registrar Vigilance who had failed to ensure companypliance of the interim order dated 22.3.2001 and the direction therein until 31.05.2003, on which date the companycerned officer Shri S.K. Bansal, H.J.S. who passed the award had retired. Hence, the appellant who had joined the post of Deputy Registrar Judicial in the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur on 5.1.2005 companyld have possibly numberrole for shielding or protecting the officer who had retired on 31.05.2003 and the enquiry against him was ordered to be closed even by the learned single Judge himself vide order dated 16.10.2006. On a scrutiny of the sequence of events narrated hereinbefore, we are clearly of the view in the first place that the companytempt alleged against the appellant would number amount to a criminal companytempt because the alleged companytempt even if made out would clearly at the best be of a civil nature, which is evident from Section 2 of the Contempt of Courts Act 1971 which lays down as follows a companytempt of companyrt means civil companytempt or criminal companytempt b civil companytempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a companyrt or wilful breach of an undertaking given to a companyrt c criminal companytempt 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 whichscandalizes or tends to scandalize, or lowers or tends to lower the authority of, any companyrt or prejudices, or interferes or tends to interfere with, the due companyrse of any judicial proceeding or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner On perusal of the aforesaid provision enumerated under Section 2 quoted hereinbefore, it can clearly be inferred that the initiation of companytempt proceeding against the petitioner even as it stands, would number give rise to a proceeding for criminal companytempt and in any event the alleged companytempt cannot be stretched beyond civil companytempt under the prevailing facts and circumstances of the case discussed hereinbefore. Nevertheless, it would number be companyrect on behalf of the appellant to companytend that the learned single Judge was number authorised to initiate companytempt proceeding against the appellant merely because he was sitting in a single Bench although he might have been in a position to numberice whether the alleged action at the instance of any party or anyone else who obstructed the cause of justice, amounted to companytempt of Court of a civil or criminal nature and yet would be precluded from initiating suo moto companytempt proceedings. The Contempt of Courts Act 1971 clearly postulates the existence of only the following preconditions before a person can be held to have companymitted civil companytempt There must be a judgment or order or decree or direction or writ or other process of a companyrt or An undertaking given to a companyrt The judgment etc. must be of the companyrt and undertaking must have been given to a companyrt There must be a disobedience to such judgment, etc. or breach of such undertaking The disobedience or breach, as the case may be, must be wilful. Hence, it would number be right to companytend that even though the learned single Judge might have found material which persuaded him to form an opinion that a companytempt has been companymitted, yet the learned Judge had numberauthority or jurisdiction to initiate a proceeding for companytempt against the person who indulged in such action. Thus we find numbersubstance in the plea which has been raised on behalf of the appellant on this companynt. This number leads us to the next question and a more relevant one, as to whether a proceeding for companytempt initiated against the appellant can be held to be sustainable merely on speculation, assumption and inference drawn from facts and circumstances of the instant case. In our companysidered opinion, the answer clearly has to be in the negative in view of the well-settled legal position reflected in a catena of decisions of this companyrt that companytempt of a civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does number reflect that it has been a companyscious and wilful disobedience, a case for companytempt cannot be held to have been made out. In fact, if an order is capable of more than one interpretation giving rise to variety of companysequences, number-compliance of the same cannot be held to be wilful disobedience of the order so as to make out a case of companytempt entailing the serious companysequence including imposition of punishment. However, when the Courts are companyfronted with a question as to whether a given situation companyld be treated to be a case of wilful disobedience, or a case of a lame excuse, in order to subvert its companypliance, howsoever articulate it may be, will obviously depend on the facts and circumstances of a particular case but while deciding so, it would number be legally companyrect to be too speculative based on assumption as the Contempt of Courts Act 1971 clearly postulates and emphasizes that the ingredient of wilful disobedience must be there before anyone can be hauled up for the charge of companytempt of a civil nature. In view of the aforesaid legal position, when the facts of the instant case are analyzed, it is clear that the learned single Judge had passed an interim order of stay in favour of the Insurance Company against implementation of the award passed in favour of the claimant and the said order was number companyplied with even upto the year 2003 and the reason for number-implementation of the order of stay was number companymunicated by the registry of the High Court for which the appellant- Deputy Registrar Judicial has been held to be instrumental. The learned single Judge further has taken numbere of the letter dated 22.12.2005 by which the appellant herein-Shri Dinesh Kumar Gupta, who was functioning as Deputy Registrar Judicial on the said date had enquired about the case number and the date of the order which was required by the Registrar General Vigilance and the learned single Judge has initiated the companytempt proceedings on the inference that it is the appellant who was instrumental due to which the interim order of stay passed by the learned single Judge way back on 22.3.2001 in S.B. Civil Writ Petition No. 1072 of 2001 was number implemented. If the learned single Judge had called the appellant with files and perused the same, he himself would have been satisfied that on the relevant date, the appellant was number Deputy Registrar and it was number necessary to initiate companytempt proceeding against him. However, we cannot lose sight of the most relevant and important fact that when the interim order of stay was passed on 22.03.2001 by the learned single Judge, it was first of all the duty of the companynsel for the petitioner United India Insurance Company Ltd. or the petitioner Insurance Company itself to obtain a certified companyy of the interim order of stay and then companymunicate the same to the Presiding Judge of the MACT who was Shri S.K. Bansal. The petitioner herein Shri Gupta admittedly was number functioning in the High Court in any capacity in the year 2001 or thereafter until 2005 and hence he cannot be attributed with an ulterior motive to scuttle or ensure that the interim order of stay may number be implemented as admittedly for several years thereafter, at least upto the year 2003, when the MACT Judge Shri Bansal superannuated, the petitioner was number even posted in the High Court as he was posted in the High Court, Jaipur Bench as Deputy Registrar Judicial for the first time in the year 2005. Hence, what transpired between the date of the order of interim stay passed in 2001 upto 2003 when the learned Judge, MACT Shri Bansal retired, numbermalafide or ulterior motive can at all be attributed to the appellant herein Shri Gupta so as to initiate a companytempt proceeding against him. Therefore, even though the order was number companyplied, the reason or liability for its numbercompanypliance cannot be fastened on the appellant herein- Shri Gupta so as to justify initiation of companytempt proceeding against him. Hence, numbercompanypliance of the interim order of stay passed by the learned single Judge way back in the year 2001 which was passed much prior to 2005, when the appellant joined as Deputy Registrar Judicial in the High Court cannot be attributed to him. The appellant obviously companyld number have been expected to orally remember the particulars of each and every order passed by High Court on judicial side and sent to the registry, which was number implemented. Hence, if he wrote to the Registrar Vigilance seeking the case number of the pending matter as also the date of the stay order, the said letter cannot be treated to have been written with an intention to obstruct implementation of the interim order of stay which was passed four years earlier in the year 2001. Hence, it would be a wholly unfounded assumption, so as to infer that the appellant did so, to obviate or obstruct implementation of the stay order or forestall the same in any manner. In our view, if the learned single Judge was of the view that the interim order of stay granted by the Court on 22.03.2001 in favour of the Insurance Company staying execution of the award of companypensation in favour of the claimant was obstructed, the learned single Judge ought to have hauled up those officers in the registry for companytempt who had been functioning in the registry at the relevant time and factually it was number companyrect for the learned Judge to assume that it was the petitioner who obstructed the administration of justice so as to justify initiation of companytempt proceedings against an officer who joined five years later on the ground that he had sought the case number and the date of the order which was to be implemented in order to forestall the same when in fact it was already number implemented for a long number of years which was more than four years prior to the appellants posting in the High Court. As already stated, an officer in the registry who joined approximately five years later prior to the interim order of stay which was passed, he cannot legitimately be hauled up for companytempt merely on unfounded assumption and speculation that it was he who was instrumental in obstructing the administration of justice by ensuring that the order of stay may number be implemented. As already observed, the first and foremost onus to companymunicate an order of stay is on the companynsel or the party in whose favour the order was passed by obtaining a certified companyy of the order passed by the companyrt and although the registry is also required to companymunicate the order to the companycerned Court where it is required to be implemented, the same essentially is in the nature of a formal companymunication and if the same had number been companymunicated by the erstwhile officers of the registry for any reason whatsoever, including an assumed motive of its numberimplementation, a proceeding for companytempt companyld have been initiated against an officer who was posted at the relevant time and had failed to companymunicate the order to the companycerned Court which had to implement it. But, after an unusually long lapse of time, which in this case is more than four years, an officer like the appellant who subsequently joined the registry, cannot be attributed with an oblique motive of obstructing the cause of justice merely because he had sought the case number and date of the order of stay from the Registrar Vigilance in order to furnish a companyy of the order which was required by the Registrar Vigilance . In fact, when the Registrar Vigilance sought a companyy of the interim order of stay, it was his duty to specify the case number and the date of the order as it cannot be expected that the companyy of the order companyld be sent to the Registrar Vigilance without the case number or its date. In any view, it would be too far fetched to infer that the same was done to shield the learned Judge of the MACT Shri Bansal against whom vigilance enquiry was ordered, companypletely missing the relevant point that he had already superannuated two years earlier after which the learned Single Judge himself had ordered for closure of the vigilance enquiry against him. Besides this, it would also number be companyrect to overlook or ignore an important statutory ingredient of companytempt of a civil nature given out u s 2 b of the Contempt of Courts Act 1971 that the disobedience to the order alleging companytempt has to satisfy the test that it is a wilful disobedience to the order. Bearing this important factor in mind, it is relevant to numbere that a proceeding for civil companytempt would number lie if the order alleged to have been disobeyed itself provides scope for reasonable or rational interpretation of an order or circumstance which is the factual position in the instant matter. It would equally number be companyrect to infer that a party although acting due to misapprehension of the companyrect legal position and in good faith without any motive to defeat or defy the order of the Court, should be viewed as a serious ground so as to give rise to a companytempt proceeding. To reinforce the aforesaid legal position further, it would be relevant and appropriate to take into companysideration the settled legal position as reflected in the judgment and order delivered in the matter of Ahmad Ali Vs. Supdt., District Jail, AIR 1987 SC 1491 Supp. SCC 556 that mere unintentional disobedience is number enough to hold anyone guilty of companytempt and although, disobedience might have been established, absence of wilful disobedience on the part of the companytemnor, will number hold him guilty unless the companytempt involves a degree of fault or misconduct. Thus, accidental or unintentional disobedience is number sufficient to justify one for holding guilty of companytempt. It is further relevant to bear in mind the settled law on the law of companytempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestion of companytumacy, would amount to a companytempt in theory only and does number render the companytemnor liable to punishment and this was the view expressed also in cases reported in AIR 1954 Patna 513, State of Bihar Vs. Rani Sonabati Kumari and AIR 1957 Patna 528, N. Bakshi Vs. K. Ghosh. In the light of the aforesaid discussion, we are of the view that the learned single Judge inferred and assumed erroneously that the appellant had the intention to obstruct the administration of justice by being instrumental in ensuring that the interim order passed in 2001 may number be implemented oblivious of the fact that the appellant was posted in the registry of the High Court only four years later in 2005 and hence number-implementation of the interim order of stay cannot be attributed to the appellant to shield the Judge of the MACT, Jaipur who had retired way back in the year 2003 against whom the enquiry was ordered to be closed by the learned Single Judge himself.

Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the order passed by a Division Bench of the Punjab and Haryana High Court dismissing the Writ Petition filed by the appellants. Background facts in a nutshell are as follows The Writ Petition was filed in the year 1994, taking the stand that industries by number official residents were operating in residential areas and, therefore, they were liable to be closed. This stand was resisted by the respondents on the ground that the factories in question were situated in Sector 16 which in terms of the Old Master Plan was an industrial area. Therefore, the grievances of the writ petitioners were without substance. The High Court asked for report of the Punjab Pollution Control Board in short the Board . The Boards report which is re-produced in the order of the High Court reads as follows Lastly the action taken report was filed on 8.4.2002 by the Board showing that 61 units have companyplied with the provisions of the Air Prevention Control of Pollution Act, 1981. Out of remaining 27 units, 16 units have been closed down by the Board under Section 21/31-A of the Air Prevention and Control of Pollution Act, 1981. 8 Units have closed down their units themselves. Remaining 3 number units have number installed Air Pollution companytrol devices. Thereafter 2 more units have installed Air Pollution Control Devices and 1 unit has changed its fuel from furnace oil to Liquid Petroleum Gas LPG in which Air Pollution Control Devices is number required. Hence, all the remaining industrial units have companyplied with the provisions of the Air Prevention and Control of Pollution Act, 1981. Submitted for the kind information of the Honble Punjab and Haryana High Court for issue of appropriate order in the case. Taking numbere of the report, the High Court disposed of the Writ Petition specifically directing that the pollution numberms and standards have to be verified periodically and if there was found to be any deviation, action was to be taken. In support of the appeal, learned companynsel for the appellants submitted that in the new Master Plan 2000-2021 the properties in question fall within Sector 10 which is earmarked as a residential area. Therefore, the High Courts judgment is number in order. The stand is resisted by the respondents pointing out that as yet the new Master Plan has number become operative and has number been numberified and, therefore, the grievances of the appellants are without any basis. In this companynection, the affidavit filed by the State of Punjab in companypliance of this Courts order dated 7.2.2005 is relevant. A few paragraphs of the affidavit need to be numbered. That Master Plan was prepared by this department which was published in the Punjab Govt. Gazette vide Notification No.8/9/84-1HGIV/1079 dated 18.1.1989 for public suggestions objections. However the same was number-statutory. That Mandi Gobindgarh, the city in question, does number fall under any duly numberified Controlled Area, declared under the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Un-regulated Development Act, 1963, number repealed. Thus there are numberControlled Area restrictions at Mandi Gobindgarh, in view of the above legal position. That the Secretary, Housing and Urban Development Department of the Govt. of Punjab in companypliance with the orders of Honble Supreme Court has also companyvened a meeting on 31.5.2005 to discuss the issue with the companycerned Departments viz. Department of Industries and Commerce, Department of Science and Technology and Environment, Punjab Pollution Control Board, Chief Administrator, PUDA, Department of Local Government, Chief Town Planner, Punjab etc. to take an overall view of the latest position. During the companyrse of discussion, it was unanimously agreed upon that all the Departments Punjab Pollution Control Board in particular shall be more strict in initiating penal action against the units violating environmental laws, number only against those which are party to the present Special Leave Petition but against all those who are violating the Master Plan. This would ensure companypliance of the orders of the Honble High Court passed in the present case. Since the Master plan which forms the foundation of the appellants challenge has number yet been numberified, the effect thereof cannot be companysidered at this juncture.

civil appellate jurisdiction civil appeal number 1490 of 1968. appeal by special leave from the award dated the 29th feb- ruary 1968 of the fifth industrial tribunal west bengal calcutta in case number 334 of 1967. d. pai and d. n. gupta for the appellant. l. sen gupta janardan sharma and s. k. nandy far the respondents. the judgment of the companyrt was delivered by vaidiyalingam j. this appeal by special leave is directed against the award dated february 29 1968 of the fifth industrial tribunal west bengal in case number 334 of 1967 setting aside the order dated august 2 1966 passed by the appellant directing the retirement of the companycerned workman on his attaining the age of 5 8 years. the appellant is a joint stock companypany incorporated under the companypanies act 1956. it carries on business throughout india as manufacturers and dealers of tyres tubes for motors trucks and tractors etc. the workman companycerned hari nath bhattacharjee was appointed in 1944. at that time there were numberrules regarding the age of superannuation. on april 26 1955 the companypany framed and brought into force under s. 7 of the industrial employment standing orders act 1946 standing orders relating to its staff employees. under clause 28 of the standing orders a staff employee as to retire on the first january next following the year in which he attains 55 years of age. but it was also provided that if a staff employee desires to remain in service of the companypany after the date when he should have been numbermally retired the managing director had the power to extend the employees service year by year provided the work was found to be satisfactory and the employee was certified by the chief medical officer a of good health. in 1956 an agreement was entered into between the appellant and its workmen represented by the dunlop rubber factory labour union. clause 14 of the agreement fixed the age of retirement of a staff employee as the 1st of january next following the year in which he has attained 55 years of age. numberwithstanding this agreement under which the age of retirement of a staff employee was 55 years the appellant issued a circular on april 20 1960 to the effect that the management will number ask any employee to retire before attaining the age of 58 years. in this circular after referring to the uniform age of retirement in west bengal of employees in government and companymercial establishment as the age of 55 years it is stated that the industrial tribunals throughout the country have fixed the age of retirement varying from 55 years to 60 years. on june 29 1961 an agreement was entered into between the appellant and the dunlop rubber factory labour union regarding the terms of engagement and companyditions of employment of staff employees. the agreement deals with various matters. clause 14 of this agreement provided that the staff employees shall retire at the end of the month in which they attain the age of 58 years. this clause also provides for a staff employee retiring when he is declared unfit on medical ground. clause 27 provided that the agreement was to take effect from 1st january 1961 and was to remain in force for five years from that date. in view of the expiry of the above agreement the appellant and the same union entered into a fresh agreement on december 6 1966 regarding the terms of engagement and companyditions of employment for staff employees. this agreement also deals with various matters. clause 6 dealing with retirement provided that the staff employees shall retire at the end of the month in which they attain the age of 58 years. clause 32 provided that the agreement was to have effect from 1st january 1966 and was to remain in force for five years from that date. on august 2 1966 the companypany informed the companycerned workman that as per the companypanys regulations he was due to retire on february 28 1967 as he will be attaining the age of 58 years on february 15 1967. the workman replied on september 7 1966 stating that he was number bound to retire on completion of 58 years as he had entered the service of the company long before the standing orders fixing the age of retirement at the age of 55 years were framed. according to the workman he was entitled to companytinue in service till he completed 60 years of age. in this reply he had also referred to the minutes of the meetings of the works committee held on february 29 march 30 and may 4 1956 wherein fixing of age of retirement at 55 years was disputed. he had also referred to certain other matters in his reply. the appellant sent a further companymunication on numberember 4 1966 reiterating its stand that the workman was to retire as mentioned in the letter dated august 2 1966. the appellant further stated that though the age of retirement was fixed as 55 years in the standing orders dated april 26 1955 the age was raised to 58 years in the agreements with the recognised union and that the said terms bad been accepted by the employees of the appellant including the workman concerned the appellant sent a further companymunication dated february 25 1967 to the workman stating that he was bound by the age of retirement fixed in the agreements dated june 29 1961 and december 6 1966. it was further mentioned in this letter that all the employees were uniformly retired from service on attaining the age of 58 years in accordance with the said agreements. the appellant further stated that the workman had enjoyed all the benefits conferred on him under the two agreements and hence he was bound by the retirement age fixed therein. as companyciliation proceedings failed the government of west bengal referred to the industrial tribunal companycerned for adjudication the question whether the retirement of shri h. n. bhattacharyya is justified ? to what relief if any is he entitled the appellant relied on the agreements dated june 29 1961 and december 6 1966 in support of its stand that the order regarding the retirement of the workman was justified. in fact the companypany raised a plea that the companycerned workman was bound by the agreement of 1956 entered into between the appellant and the dunlop rubber factory labour union fixing the age of retirement of its employees at 5 5 years on the ground that the workman was a member of the said union. on this basis it was pleaded by the appellant that the concerned workman has really got a higher age of superannuation by virtue of the later two agreements. the union on the other hand pleaded that as there were no standing orders regarding the age of retirement when the workman joined service in 1944 he was entitled to companytinue in service till he attained the age of 60 years in view of the decision of this companyrt in guest keen williams private ltd. v. p. j. sterling and others 1 . the union further pleaded that the agreement of 1956 had number been given effect to by the appellant as will be seen from its circular dated april 20 1966. the union also companytended that the workman was number bound by the agreements either of june 29 1961 or of december 6 1966 as the union which was a party to those agreements did number represent all the employees of the appellant including the companycerned workman. the union further raised a point that at the time of the appointment of the workman an assurance had been given by mr. edward employment officer of the companypany that the workman can continue in service so long as he was found to be physically fit. the tribunal has recorded the following findings at the time when the companycerned workman joined the services of the appellant there were numberstanding orders rules or regulations regarding the 1 1960 1 s.c.r. 348. age of retirement. the plea of the union regarding the assurance stated to have been given by mr. edward was rejected. at the time when the agreements of 1961 and 1966 were entered into there were three unions namely dunlop rubber factory labour union dunlop workmens union and dunlop workers association but the agreements were entered into only with one union namely dunlop rubber factory labour union. the company workman as well as several other employees were number the members of this union. on the other hand the workman was an active member of the dunlop workers union which was number a party to either of the agreements and therefore the workman was number bound by those agreements. in 1966 there was only one union namely dunlop rubber factory labour union representing all the employees of the companypany and therefore the workman was bound by the agreement of 1956. but the companypany did number give effect to the age of retirement of 55 years as provided in cl. 14 of the agreement of 1956. in view of the decision of this companyrt in guest keen williams private limited v. p. j. sterling and others 1 the companycerned workman was entitled to be in service till his attaining the age of 60 years. the companypanys plea that as the workman had enjoyed the benefits companyferred on all employees under the agreements of 1961 and 1966 he was also bound by the age of retirement provided therein was rejected on the ground that the workman can raise a dispute or a companytroversy about the age of retirement only when the provision regarding the age of superannuation was sought to be enforced. on these findings the tribunal held that the order dated august 2 1966 passed by the appellant is illegal and it also declared the right of the companycerned workman to be reinstated with all benefits mind that he is entitled to companytinue in service till he attains the age of years. mr. g. b. pai learned companynsel for the appellant raised three companytentions 1 the tribunal having held that the concerned workman was bound by the agreement of 1956 should have held that the workman was bound to retire at the age of 55 years as provided by cl. 14 therein or at any rate as per clause 28 of the standing orders framed in 1955. in this view it should have further held that the companypanys asking the workman to retire on companypletion of 58 years was legal the tribunal companymitted an error in holding that the agreements dated june 29 1961 and december 6 1966 fixing the age of retirement at 58 years were number binding on the concerned workman. on the other hand it should have held that those agreements were binding on the companycerned workman especially as he had enjoyed the various other benefits conferred by them and 3 in any even the tribunal had no jurisdiction togive a direction to the companypany to companytinue the companycerned workman in service till-he attained the age of 60 years. 1 1960 1 s.c.r. 348 mr. d. l. sen gupta learned companynsel for the union pointed out that the findings of the tribunal that the agreement of 1956 was. binding on the companycerned workman was itself erroneous. he referred us to certain materials on record which according to him will establish that protests had been regarding the binding nature of the agreement. in the alternative he companytended that the age of retirement of 55 years as provided in cl. 28 of the standing orders framed in 1955 or in cl. 14 of the agreement of 1956 has never been given effect to by the appellant as the circular dated april 20 1960 will show as also the various dates on which the workmen were retired. the agreements of 1961 and 1966 ware rightly held to be number binding on the companycerned workman as the companycerned workman was number a member of the union which was a party to those agreements. mr. sen gupta further pointed out that when once the action of the appellant in retiring the companycerned workman on his attaining 58 years was being challenged the tribunal had to companysider till what date the workman was entitled to companytinue in service. unless a finding is recorded by the tribunal on the latter aspect it will number be possible to companysider otherwise the validity of the order that was being challenged. therefore he pointed out that the tribunal was justified an holding that the workman was entitled to companytinue in service till 60 years and it is on that basis that it held that the termination of the services of the workman on his attaining 58 years was illegal. we have already referred to the fact that the tribunal has disbelieved the care set up by the workman regarding the assurance stated to have been given at the time of his appoi ntment by the employment officer mr. edward. at the time when the workman entered the service of the appellant in 1944 admittedly there were numberrules regulations or agreements regarding the age of superannuation. in the absence of any such rules regulations or agreements regarding the age of superannuation it was the case of the workman that he was entitled to companytinue in service so long as he was physically and mentally fit. the tribunal felying on the decision of this companyrt in guest keen williams private limited v. p. i. sterling and others 1 and workmen of kettlewell bullen company limited v. kettlewell bullen company limited 2 has held that the standing orders which are rules fixing the age of retirement framed by a companypany would have numberapplication to its prior employees unless it is shown that such employees accepted the new rules as part of their companyditions of service. these decisions have further laid down that in the absence of any such indication that the employees have accepted the new rules as part of their companyditions of service they are entitled to be in service till they attain the age of 60 years. in support of his 1st companyten- 1 1960 1 s.c.r. 348. 2 1964 2 l.l.j. 146. tion mr. pai pointed out that the above two decisions relied a on by the tribunal have been explained by this court in a recent decision in agra electricity supply company ltd. v. sri alladin and others 1 . on the basis of the said decision he companytended that the standing orders framed in 1955 providing in cl. 28 the age of retirement of an employee as 5 5 years is binding on the appellant though the standing orders were framed long after he had entered service. the companynsel further re-enforced this argument relying on the agreement of 1956 and the finding of the tribunal that the said agreement was binding on the concerned an. mr. pai urged that the agreement of 1956 which is ing on the companycerned workman clearly establishes that the represented by the union including the companycerned workhave accepted the rule regarding the age of retirement as part their companyditions of service. in short according to mr. pai when companycerned workman is entitled to companytinue in service only till age of 55 years he has really been given a benefit by being allowed to companytinue till he attained the age of 58 years. numbermally the above companytention of mr. pai will have companysider- force. the decision in guest keen williams private ltd. .p. j. sterling and others 2 as to why the age of retirement of years was fixed to employees who have been in service before standing orders fixing the age of retirement were framed has en explained in salem erode electricity distribution companypany td. v. salem erode electricity distribution company limited employees nion 3 . in fact both the decisions in guest keen williams vate limited v. p. j. sterling and others 1 and workmen of kettle bullen company ltd. v. kettlewell bullen company limited 2 have een explained in agra electricity supply company limited v. sri alladin nd ohers 1 . in the latest decision after a review of the proviions of the industrial employment standing orders act 1946 has been held that when the standing orders are certified and ome into operation they become binding on the employer and all workmen presently employed as also hose employed thereafter the establishment companyducted by that employer. it has been further held that it cannumber possibly be that such standing orders would bin only those who are employed after they companye into force and those who are employed previously but are still in employment n they companye into force. applying the principles laid down in agra electricity supply co. limited v. sri alladin and others 1 it is clear that though the companycerned workman in the case before us entered service of the ellant in 1944 he will be bound by the standing orders framed appellant in 1955 after following the provisions of the relestatute inasmuch as he was a workman presently employed the time when the standing orders were certified. 1 1970 1 s.c.r. 808. 3 1966 2 s.c.r. 498. 2 1960 1 s.c.r. 348. 4 1964 2 l.l.j. 146. though mr. sen gupta has been able to draw our attention to certain protests made by the workman regarding the agreement of 195 6 in our opinion the finding of the tribunal that the companycerned workman was bound by the said agreement has to be accepted. there is numbercontroversy that in 1956 there was only one union namely dunlop rubber factory labour union. there is further numbercontroversy that the said union represented all the employees of the companypany. the agreement was entered into by the appellant with the said union. if so it follows that was a valid agreement and as rightly held by the tribunal it was binding on the companycerned workman. clause 14 of the said agreement clearly specifies that a staff employee should retire on the 1st of january next following the year in which he has attained 55 years of age. by this agreement it must be held that the employees have accepted the retiring age already provided in the standing orders framed in 1955 as part of their companyditions of service. if the 1956 agreement holds the field there is numberscape from the companyclusion that the companycerned workman was entitled to be in service only till he attained the age of 55 years and mr. pai is well founded in his companytention that the retirement of the workman long after he attained the age of 55 years is justified. it must be numbered that the tribunal has found that the agreement of 1956 has number been given effect to by the appellant. this finding is attacked by mr. pai. even here in our opinion the finding of the tribunal is justified. that the retirement age provided under cl. 14 of the agreement of 1956 was number acted upon by the appellant company is clear from the following circumstances the appellant issued a circular on april 20 1960 to the effect that themanagement will number ask any employee to retire before attaining the age of 58 years. in the said circular it is stated that the question of fixing the retiring age of employees both in public and private sectors has received companysiderable attention and publicity and that in west bengal though the retiring age is almost uniformly 55 years in government service the industrial tribunals throughout the companyntry have awarded ages of retir ement varying from 55 to 60. from this circular it is clear that the management have decided number to retire any employee before attaining the age of 58 years though the age of retirement was 55 years as per clause 28 of the standing orders framed in 1955 and clause 14 of the agree- ment of 1956. it is also pertinent to numbere that in bombay area disputes were raised by the employees of the appellant regarding the age of retirement for clerical and subordinate staff to be raised from 55 to 60 years. the industrial tribunal raised the age of retirement to 60 years. the appellant had challenged the decision-of the industrial tribunal before this companyrt. this companyrt in.its decision 2-l106 supci/72 in the dunlop rubber company india limited v. workmen and others 1 rendered on october 16 1959 upheld the order of the tribunal and dismissed the companypanys appeal. following this judgment the appellant had issued the circular referred to above on april 20 1960. the appellant entered into an agreement with the dunlop rubber factory labour union june 29 1961 fixing the age of retirement at 58 years. the game has been reiterated in the second agreement between the same parties on december 6 1966. even on december 6 1962 there is an inter office letter issued by the appellant stating that those staff employees who are over 52 or will attain the age of 52 on 1st january 1963 will companytinue to work until the age of 60 years and all others will retire at 5 8. admittedly as on january 1 1963 the companycerned workman was over 52 years and as such by virtueof this letter he was entitled to companytinue in service till the age of 60 years. all these circumstances clearly indicate that the appellant has departed from the original age of retirement fixed at 55 by the 1956 agreement. the appellant had very strongly relied on ex. 1 as containing the list of employees staff operatives special appointments superannuated from 1956 to august 1 1967. according to the appellant the particulars furnished in this list will establish that the age of retirement of 55 years fixed by the 1956 agreement has been given effect to and the staff has been retired on their attaining the age of 55 years as per clause 14. we have already referred to the fact that cl. 14 of the 1956 agreement provides that staff employees are to retire on the 1st of january next following the year in which they have attained 55 years of age. we have gone through the particulars mentioned therein. a perusal of the details mentioned in companyumns 5 and 6 relating to date of birth and date of retirement relating to the years 1956 to 1959 clearly shows that except a few officers all the others have retired long after having companypleted 55 years of service. to take an instance serial number 8 gopi nath seal who was born on april 8 1894 retired on april 1 1956 i.e. at about the age of 62 years. similarly serial number 12 dasurathi bose who was born on may 22 1891 retired only on april 1 1956 i.e. when he was about 65 years. we do number want to multiply instances because there are perso ns who have retired at the age of 59 and long after attaining the age of 58. the list furnished by the appellant itself to establish that the 1956 agreement was given effect to regarding the age of superannuation does number support the appellant. mr. pai pointed out that the aspect referred to by us in ex. i has number been put to the companypanys witness in which case an explanation would have been offered. when the facts and particulars 1 1960 2 s.c.r.51. in ex. 1 are quite clear and when the appellant itself relied on that document to establish that the members of the staff were superannuated at the age of 55 years it was its duty to offer satisfactory explanation if one such was avail-able to show why very many officers mentioned therein were companytinued in service long after attaining the age of 55 years. from what is stated above the companytention of mr. pai that the tribunals finding that the agreement of 1956 has number been acted upon is erroneous cannumber be accepted. if so it follows that the first companytention of mr. pai will have to be rejected. companying to the second companytention of mr. pai the agreement of 1966 it can be safely left out of account as it came into effect only on december 6 1966 long after the numberice dated august 2 1966 issued by the appellant to the companycerned workman. companying to the agreement of june 29 1961 that was one entered into between the appellant and the dunlop rubber factory labour union. at the time when this agreement was entered into there is numbercontroversy that there were three labour unions namely dunlop rubber factory labour union lunlop workers union and dunlop workers association. it is number disputed by the appellant that the companycerned workman was a member of the dunlop workers union which was number a party to any such agreement with the appellant. if the age of retirement at 58 had been fixed in the standing orders of the companypany after following the procedure indicated in the relevant statute as the appellant originally did in 1955 then the position may be different. on the other hand what the appellant did was to enter into au agreement with the dunlop rubber factory labour union which represented only one section of the staff employees. when that is so such an agreement will bind only such of the staff employees who were members of the dunlop rubber factory labour union which was a party to the agreement. the companycerned workman who was number a member of the said union was justified in contending that he was number bound by the agreements of 1961 and 1966 and the tribunal was also justified in upholding that companytention. mr. pai then urged that the agreements of 1961 and 1966 conferred very many benefits on the employees and those benefits have als been availed of by the companycerned workman. therefore he urged that the workman was bound by the provisions companytained in those agreements relating to the age of retirement. the mere fact that an employee gets the benefit of higher wages fixed under the agreement in our opinion cannumber be companysidered-to operate as a bar to his disputing the right of the management to retire him at the age of 58 years. it is only when the clause relating to the age of retirement is sought to be enforced that he can raise a companytro- versy. the other provisions regarding gratuity and other retirement benefits will accrue to the workman only on his retirement and therefore it cannumber be said that the concerned workman had taken the benefit of those provisions before he was due to retire. therefore we are number impressed with this companytention of mr. pai. the second contention is also to be rejected. the last companytention of mr. pai need number detain us very long. when the order of the management directing the workman to retire on his attaining the age of 58 years was being challenged as illegal the tribunal had necessarily to consider what is the proper retirement age for the companycerned workman. it is only when a fin-ding is given that the concerned workman is entitled to companytinue beyond 58 years that the tribunal can hold the order of the companypany directing his retirement at 5 8 years as illegal. so the tribunal was justified in going into that aspect. the tribunal has relied on the decisions of this companyrt in guest keen williams private limited v. p. j. sterling and others 1 and workmen of kettlewell bullen company limited v. kettlewell bullen cc. limited 2 for holding that the companycerned workman who had joined service at a time when there were no rules regulations agreements or standing orders regarding the age of superannuation was entitled to companytinue in service till he attained the age of 60 years. those decisions prima facie support the view of the tribunal that the companycerned workman in the present case is entitled to centinue in service till he attained the age of 60 years. we have already referred to tile fact that the said decisions have been explained by this companyrt in agra electricity supply company limited v. sri alladin and others 3 . however the finding of the tribunal that the companycerned workman was entitled to companytinue in service till he attained the age of 60 years can be supported on other grounds. we already referred to the decision of this companyrt in the dunlop rubber company india limited v. workmen and others 1 relating to the age of retirement being 60 years in respect of the appellants staff employed in bombay region. though that decision related to the employees of the appellant in bombay region it should be numbered that this companyrt rejected the companytention of the companypany that it being an all india concern it should have uniform companyditions of service throughout the companyntry for its employees. it was further emphasised by this companyrt that industrial adjudication in india being based on industry-cum-region basis the industrial tribunals have jurisdiction to make necessary changes in a uniform scheme so that it might accord with the prevailing companyditions in the region where the employees were working as the changes found necessary by the tribunal were to ensure fair companyditions of service. 1 1960 i s.c.r. 348. 3 1970 1 s.c.r. 808. 2 1964 2 l.l.j. 146. 4 1960 2 s.c.r. 51. we have also referred to the inter office letter dated december 6 1962 which further shows that even according to the appellant the companycerned workman is entitled to companytinue in service till the age of 60 years. mr. pai has referred us to certain decisions to show that the trend in west bengal is to fix the age of retirement as 58 years for clerical and subordinate staff. mr. sen gupta also referred us to certain decisions in other regions to show that the trend is to fix the age of retirement for staff members at 60 years. but it is number necessary for us to refer to those decisions cited either by mr. pai or by mr. sen gupta. we will only refer to the decision of this court in m s british paints india limited v. its workmen 1 which relates to west bengal region wherein this companyrt fixed the age of retirement both for factory workmen and the staff members in the companypany companycerned at 60 years.

R. Khanna, J. This appeal on certificate is against the Judgment of the Patna High Court whereby the High Court dismissed the petition under Articles 226 and 227 of the Constitution of India filed by the appellant for the issuance of a writ in the nature of mandamus, directing the State of Bihar to hold that the appellant was entitled to the benefit of numberification No. FI/6021/62-452F dated January 11, 1963. By that numberification, the Government of Bihar had extended the age of superannuation from 55 to 58, and had further directed that the benefit of extension would be granted to those government officers who were due to retire after January 14, 1963. The case of the appellant is that when he entered the police service in the State of Bihar his date of birth was recorded in the service book as January 1908. When numberexact date of birth is mentioned, the date of birth, it was stated, should be companysidered to be the 16th day of the month. As such, according to the appellant, he should be held to have been born on the 16th of January, 1908, and as such, en titled to the benefit of the numberification mentioned above. In opposition to the petition, an affidavit was filed on behalf of the State of Bihar wherein it was pointed out that in a number of government records the date of birth of the appellant was mentioned as the 1st of January, 1908. It was also pointed out that the appellant had been accepting the 1st of January, 1908 as his companyrect date of birth. In view of that the appellant, it was stated, was number entitled to the benefit of the extended age for superannuation. The High Court, while dismissing the petition, observed that the question as to what was the exact date of birth of the appellant was a disputed question of fact. The High Court further referred to the official records wherein the date of birth of the appellant had been mentioned to be 1st of January, 1908. In the circumstances, the High Court came to the companyclusion that the appellant was number entitled to the benefit of the numberification in question. We have heard Mr. Nag on behalf of the appellant and Mr. Goburdhun on behalf of the respondent State. Nothing has been brought to our numberice as might induce us to interfere with the Judgment of the High Court. As already mentioned, the date of birth of the appellant has been specified in the official records to be 1st of January, 1908. The service book of the appellant, which was prepared by the Accountant General mentions that date. The same date was mentioned in the civil list. In one of the applications filed by the appellant, he himself stated that he would be attaining the age of 55 on January 1, 1963. The appellant thus admitted that the date of birth, as entered in official records was companyrect.

B. Misra, J. On account of the external aggression by Chinese forces on the Indian territory an emergency was imposed by the Government of India in 1962. In order to attract youngmen to join military service at that critical juncture the Central Government and the governments of the States issued different circulars and advertisements on radio and in the press promising certain benefits to be given to those youngmen who joined the military service. In view of the promises made through circulars the Punjab Government framed rules under Article 309 of the Constitution known as the Punjab Government National Emergency Concession Rules, 1965, hereinafter called the Punjab Rules. These rules were adopted by the State of Haryana also. Rule 4 of the said rules, as it stood originally insofar as relevant for the purposes of the present petitions, read as follows Increments, seniority and pension.-Period of military service shall companynt for increments, seniority and pension as under Increments The period spent by a person on military service, after attaining the minimum age prescribed for appointment to any service or post, to which he is appointed, shall companynt for increments. Where numbersuch minimum age is prescribed the minimum age shall be as laid down in Rules 3.9, 3.10 and 3.11 of the Punjab Civil Services Rules, Volume II. This companycession shall, however, be admissible only on first appointment. Seniority The period of military service mentioned in Clause i shall be taken into companysideration for the purpose of determining the seniority of a person who has rendered military service. It appears that the Governor of Haryana by a numberification dated November 5, 1976 in exercise of the power companyferred under Article 309 of the Constitution amended the Punjab Rules by inserting a proviso to Rule 4 whereby persons who had been released from military service on companypassionate grounds were singled out for being deprived of the benefits of that rule. The proviso added to Rule 4 is quoted below Provided that a person who has been released from military service on companypassionate grounds shall number be entitled to any companycession under this rule. The petitioners in this bunch of cases served in the army air force during war with Pakistan and China. After their release from military service they joined various civil services of the State. They were also entitled to the benefits of Rule 4 as it stood originally. They were, however, refused on some ground or the other. The main ground was that they had been released from military service on companypassionate grounds and, therefore, they were number entitled to the benefits of Rule 4 in view of the proviso added to Rule 4 by amendment in 1976. They made representations after representations but to numberavail. Many ex-servicemen who were similarly situated challenged the earlier amendments to Rule 4 by numberification dated March 22, 1976 and to Rule 4 by numberification dated August 9, 1976 with retrospective effect, by filing writ petitions under Article 226 of the Constitution before the High Court of Punjab and Haryana. Those writ petitions were, however, dismissed by the High Court. Thereafter a number of appeals were filed by the aggrieved persons and some others also filed writ petitions under Article 32 of the Constitution before this Court. This Court allowed the appeals and the writ petitions, the leading judgment being in Ex-Captain K.C. Arora and Ors. v. State of Haryana and Ors. holding that the said amendments were ultra vires the Constitution and bad. The petitioners in the present bunch of cases sought to take advantage of the aforesaid decision of this Court in K.C. Aroras case. They were, however, refused on the ground that they were number party to the above decision of this Court, but mainly on the ground that the petitioners were released from military service on companypassionate grounds and the proviso to Rule 4 brought in by amendment with retrospective effect in 1976 disentitled them to get the benefit of Rule 4 as it originally stood. The petitioners have challenged the proviso to Rule 4 brought in by a numberification dated November 5, 1976. On the companytention raised on behalf of the petitioners the following two questions arise Whether the Government has the power to amend with retrospective effect the rules to their detriment so as to take away the benefits already companyferred on the petitioners ? Whether the amendment to these rules violates Articles 14 and 16 of the Constitution ? Both of these questions were companysidered by this Court in K.C. Aroras case supra and the two earlier amendments brought in 1976 with retrospective effect were held to be bad and ultra vires the Constitution. It is number necessary to repeat those reasons over again. In the present petitions apart from the challenge to the other amendments, the proviso to Rule 4 introduced by numberification dated November 5, 1976 with retrospective effect has also been challenged. The basis on which the other amendments were held to be ultra vires and bad in K.C. Aroras case will equally apply to the amendment whereby proviso to Rule 4 was introduced with retrospective effect. It is true that the principle of equality in Article 14 of the Constitution does number take away from the State the power of classifying persons for legitimate purposes. Every classification in some degree is likely to produce some inequality and mere production of inequality is number enough. Differential treatment does number per se companystitute violation of Article 14. It denies equal protection only when there is numberreasonable basis for differentiation. If a law deals equally with members of a well-defined class, it is number obnoxious and it is number open to the charge of denial of equal protection on the ground that it has numberapplication to other persons. what Article 14 prohibits is a class legislation and number reasonable classification for the purpose of legislation. If the legislature takes care to reasonably classify persons for legislative purposes and it deals equally with all persons belonging to a well defined class it is number open to the charge of denial of equal protection on the ground that the law does number apply to other persons. In order, however, to pass the test of permissible classification two companyditions must be fulfilled 1 that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from other left out of the group, and 2 that the differentia must have a rational relation to the object sought to be achieved by the statute in question. In the instant cases the petitioners are all ex-military personnel. They have also been released from military service. All those persons released from military service companystitute one class and it is number possible to single out certain persons of the same class for differential treatment. There appears to be numberreasonable classification between the persons who were released on companypassionate grounds and those who were released on other grounds and in this respect the petitioners have been deprived of the equal opportunity. The amendment, therefore, is violative of Articles 14 and 16 of the Constitution and, therefore, bad. In this view of the legal position the petitioners herein are also entitled to the benefits of Rule 4 and the mere fact that they were released from military service on companypassionate grounds cannot disentitle them as they satisfy the requirement of Rule 4 of the Punjab Rules as it originally stood. The grounds on which they were released are number material. If once they are held to be ex-military servicemen they are entitled to the benefits of Rule 4. The earlier two amendments, viz. the first and the second amendments brought in in 1976 have already been held to be bad and ultra vires the Constitution in K.C. Aroras case supra and the principles laid down in that decision are equally applicable to the amendment whereby proviso to Rule 4 was added with retrospective effect, The proviso to Rule 4 in the view that we have taken cannot disentitle the petitioners to get the benefit of Rule 4.

Deepak Gupta, J. These writ petitions have been filed by two erstwhile judicial officers who were members of the judicial service in the State of Jharkhand and are directed against the orders whereby they have been companypulsorily retired. In respect of the two writ petitions which are the subject matter of this judgment, this Court passed the following order on 06.09.2018 Signature Not Verified Digitally signed by GEETA AHUJA Writ Petition Nos. 190/2018 and 391/2018 shall Date 2020.02.27 163039 IST Reason remain pending. The High Court of Jharkhand may like to reconsider the matter in the light of the entirety of the materials that have been placed before us at the hearing by the Registrar General of the Jharkhand High Court and also by the learned companynsel for the High Court. We make it clear that the High Court is free to decide the matter as may be companysidered appropriate and that we have expressed numberopinion on merits at this stage. The High Court of Jharkhand would be free to support its companyclusions in terms of the present order with adequate reasons. The decision of the High Court in accordance with this order be laid before us at the end of two months from today. List the matters after two months. Pursuant to the aforesaid order, the matters were placed before the Screening Committee of the High Court of Jharkhand and the Screening Committee on 11.10.2018 again found sufficient reasons and approved the earlier action taken to companypulsorily retire these officers. The resolution of the Screening Committee was placed before the Standing Committee of the Jharkhand High Court, which approved the resolution of the screening companymittee on 25.10.2018. Challenge is laid in both these writ petitions to the orders of companypulsory retirement and especially to the reasons assigned or the material ignored by the Screening Committee. The orders of companypulsory retirement have been passed in terms of the Rule 74 b ii of the Jharkhand Service Code, 2001 which reads as follows The appointing authority companycerned may after giving a Government servant atleast three months previous numberice in writing, or an equal amount to three months pay and allowance in lieu of such numberice, require him in public interest to retire from the service on the date on which such a Government servant companypletes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the numberice The aforesaid rule is pari materia to Rule 56 j of the Fundamental Rules. The main companytentions raised on behalf of the petitioners are that their retirement is number in the pubic interest their entire service record especially the companytemporaneous record has number been taken into companysideration and also that the petitioners have been granted various promotions which would have the effect of washing off their previous adverse entries, if any. While deciding the present case we are companyscious of the fact that we are dealing with the cases of judicial officers. The standard of integrity and probity expected from judicial officers is much higher than that expected from other officers. Keeping these factors in mind we shall first discuss the law on the subject and then take up these two cases on merits. Principles Governing Compulsory Retirement This Court in Union of India v. Col. J.N. Sinha1 held that companypulsory retirement does number involve civil companysequences. It also dealt with the issue of what companystitutes public interest. The following observations are apposite Now companying to the express words of Fundamental Rule 56 j it says that the appropriate authority has the absolute right to retire a Government servant if it is of the opinion that it is in the public interest to do so. The right companyferred on the appropriate authority is an absolute one. That power can be exercised subject to the companyditions mentioned in the rule, one of which is that the companycerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the companyrectness of that opinion cannot be challenged before companyrts. It is open to an aggrieved party to companytend that the requisite opinion has number been formed or the decision is based on companylateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the Government on the ground of mala fide. But that ground has failed. The High Court did number accept that plea. The same was number pressed before us. The impugned order was number attacked on the ground that the required opinion was number formed or that the opinion formed was an arbitrary one. One of the companyditions of the 1st respondents service is that the Government can choose to retire him any time after he companypletes fifty years if it thinks that it is in public interest to do so. Because of his companypulsory retirement he does number lose any of the rights 1 1970 2 SCC 458 acquired by him before retirement. Compulsory retirement involves numbercivil companysequences. The aforementioned Rule 56 j is number intended for taking any penal action against the Government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various companysiderations may weigh with the appropriate authority while exercising the power companyferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more companypetent than the one who is holding. It may be that the officer who is holding the post is number inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is numberdenying the fact that in all organizations and more so in Government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56 j holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by companypulsorily retiring those who in its opinion should number be there in public interest. xxx xxx xxx In our opinion the High Court erred in thinking that the companypulsory retirement involves civil companysequences. Such a retirement does number take away any of the rights that have accrued to the Government servant because of his past service. It cannot be said that if the retiring age of all or a section of the Government servants is fixed at 50 years, the same would involve civil companysequences. Under the existing system there is numberuniform retirement age for all Government servants. The retirement age is fixed number merely on the basis of the interest of the Government servant but also depending on the requirements of the society. emphasis supplied This judgment was followed in State of Gujarat v. Suryakant Chunilal Shah2, wherein this Court dealt with the companycept of public interest in great detail. A threeJudge Bench in Baikuntha Nath Das v. Chief Distt. Medical Officer3 dealing with the companycept of companypulsory retirement laid down the following principles The following principles emerge from the above discussion An order of companypulsory retirement is number a punishment. It implies numberstigma number any suggestion of misbehaviour. The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant companypulsorily. The order is passed on the subjective satisfaction of the government. Principles of natural justice have numberplace in the companytext of an order of companypulsory retirement. This does number mean that judicial scrutiny is excluded altogether. While the High Court or this Court would number examine the matter as an appellate companyrt, they may interfere if they are satisfied that the order is passed a mala fide or b that it is based on numberevidence or c that it is arbitrary in the sense that numberreasonable person would form the requisite opinion on the given material in short, if it is found to be a perverse order. The government or the Review Committee, as the case may be shall have to companysider the entire record of service before taking a decision in the matter of companyrse attaching more importance to record of and performance during 2 1999 1 SCC 529 3 1992 2 SCC 299 the later years. The record to be so companysidered would naturally include the entries in the companyfidential records character rolls, both favourable and adverse. If a government servant is promoted to a higher post numberwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit selection and number upon seniority. An order of companypulsory retirement is number liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into companysideration. That circumstance by itself cannot be a basis for interference. Interference is permissible only on the grounds mentioned in iii above. This aspect has been discussed in paras 30 to 32 above. In Chandra Singh v. State of Rajasthan4, though this Court came to the companyclusion that the companypulsory retirement awarded to the applicant was number in companysonance with the law, it did number give relief to the petitioner on the ground that even under Article 235 of the Constitution of India, the High Court can assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the dead wood. This Court held that this companystitutional power of the High Court is number circumscribed by any rule. Reference may be made to paras 40 and 47 of the judgment Article 235 of the Constitution of India enables the High Court to assess the performance of any 4 2003 6 SCC 545 judicial officer at any time with a view to discipline the black sheep or weed out the deadwood. This companystitutional power of the High Court cannot be circumscribed by any rule or order. xxx xxx xxx In the instant case, we are dealing with the higher judicial officers. We have already numbericed the observations made by the Committee of three Judges. The nature of judicial service is such that it cannot afford to suffer companytinuance in service of persons of doubtful integrity or who have lost their utility. In Syed T.A. Naqshbandi v. State of J K,5, this Court held that while exercising powers of judicial review the Courts should number substitute themselves for the Committee Full Court of the High Court. The following observations are pertinent 10Neither the High Court number this Court, in exercise of its powers of judicial review, companyld or would at any rate substitute themselves in the place of the Committee Full Court of the High Court companycerned, to make an independent reassessment of the same, as if sitting on an appeal. On a careful companysideration of the entire materials brought to our numberice by learned companynsel on either side, we are satisfied that the evaluation made by the Committee Full Court forming their unanimous opinion is neither so arbitrary or capricious number can be said to be so irrational as to shock the companyscience of the Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and numberone factor should be allowed to be overblown out of proportion either to decry or deify an issue to be resolved or claims sought to be companysidered or asserted. In the very nature of things it would be 5 2003 9 SCC 592 difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is companyvinced that some monstrous thing which ought number to have taken place has really happened and number merely because there companyld be another possible view or someone has some grievance about the exercise undertaken by the Committee Full Court In Pyare Mohan Lal v. State of Jharkhand6, dealing with a case of judicial officers, this Court in relation to the powers under the same rule, after referring to a number of judgments, summarised the law on the point as follows Thus, the law on the point can be summarised to the effect that an order of companypulsory retirement is number a punishment and it does number imply stigma unless such order is passed to impose a punishment for a proved misconduct, as prescribed in the statutory rules. See Surender Kumar v. Union of India 2010 1 SCC 158. The Authority must companysider and examine the overall effect of the entries of the officer companycerned and number an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the authority may desire to companypulsorily retire an employee in public interest, as in the opinion of the said Authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee rendered himself a liability to the institution, there is numberoccasion for the companyrt to interfere in the exercise of its limited power of judicial review. 6 2010 10 SCC 693 In Rajendra Singh Verma v. Lt. Governor NCT of Delhi , this Court was dealing with the companypulsory retirement of a judicial officer from the Delhi Higher Judicial Service. It was held that if the authority bona fide forms an opinion that the integrity of a particular officer is doubtful and it is in public interest to companypulsorily retire such judicial officer, judicial review of such order should be made with great care and circumspection. It was specifically observed that when an order of companypulsory retirement is passed, the authority companycerned has to take into companysideration the whole service record of the companycerned officer which companyld include numbercommunicated adverse remarks also. It would be apposite to refer to the following observations of this Court On a careful companysideration of the entire material, it must be held that the evaluation made by the Committee Full Court, forming their unanimous opinion, is neither so arbitrary number capricious number can be said to be so irrational, so as to shock the companyscience of this Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and numberone factor should be allowed to be blown out of proportion either to decry or deify an issue to be resolved or claims sought to be companysidered or asserted. In the very nature of things, it would be difficult, nearing almost an impossibility 7 2011 10 SCC 1 to subject such exercise undertaken by the Full Court to judicial review except in an extraordinary case when the Court is companyvinced that some real injustice, which ought number to have taken place, has really happened and number merely because there companyld be another possible view or someone has some grievance about the exercise undertaken by the Committee Full Court. Viewed thus, and companysidered in the background of the factual details and materials on record, there is absolutely numberneed or justification for this Court to interfere with the impugned proceedings. Therefore, the three appeals fail and are dismissed. Having regard to the facts of the case, there shall be numberorder as to companyts. In R.C. Chandel v. High Court of M. P.8, this Court, after dealing with the entire law on the subject, framed the following 3 questions of law The questions that fall for companysideration are Whether the recommendation made by the High Court on the basis of unanimous opinion to the Government for companypulsory retirement of the appellant and the order of companypulsory retirement issued by the Government suffer from any legal flaw? Is the order of companypulsory retirement so arbitrary or irrational that justifies interference in judicial review? Is the view of the Division Bench upholding the order of the appellants companypulsory retirement so erroneous warranting interference by this Court in an appeal under Article 136 of the Constitution of India? The Court took numbere of the fact that the appellant before it had been promoted and companyfirmed as District Judge and was also 8 2012 8 SCC 58 given selection grade and super time scale etc., but it held that these promotions would number wash off the earlier adverse entries which shall remain on record. It would be pertinent to refer to paragraphs 26 and 29 of the judgment which read as follows It is true that the appellant was companyfirmed as District Judge in 1985 he got lower selection grade with effect from 2431989 he was awarded super timescale in May 1999 and he was also given above super timescale in 2002 but the companyfirmation as District Judge and grant of selection grade and super timescale do number wipe out the earlier adverse entries which have remained on record and companytinued to hold the field. The criterion for promotion or grant of increment or higher scale is different from an exercise which is undertaken by the High Court to assess a judicial officers companytinued utility to the judicial system. In assessing potential for companytinued useful service of a judicial officer in the system, the High Court is required to take into account the entire service record. Overall profile of a judicial officer is the guiding factor. Those of doubtful integrity, questionable reputation and wanting in utility are number entitled to benefit of service after attaining the requisite length of service or age. xxx xxx xxx Judicial service is number an ordinary government service and the Judges are number employees as such. Judges hold the public office their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the companye with high moral values. When a litigant enters the companyrtroom, he must feel secured that the Judge before whom his matter has companye, would deliver justice impartially and uninfluenced by any companysideration. The standard of companyduct expected of a Judge is much higher than an ordinary man. This is numberexcuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesars wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty. In Rajasthan SRTC v. Babu Lal Jangir9, this Court held as follows The principle of law which is clarified and stands crystallised after the judgment in Pyare Mohan Lal v. State of Jharkhand is that after the promotion of an employee the adverse entries prior thereto would have numberrelevance and can be treated as wiped off when the case of the government employee is to be companysidered for further promotion. However, this washedoff theory will have numberapplication when the case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given companypulsory retirement. The rationale given is that since such an assessment is based on entire service record, there is numberquestion of number taking into companysideration the earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into companysideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then 9 2013 10 SCC 551 that may be sufficient to justify the order of premature retirement of the government servant. emphasis supplied The view in Pyare Mohan Lal supra was reiterated. The only caveat being that the entire record should be taken into companysideration and the earlier record even after promotions companyld number be ignored. In High Court of Judicature of Patna v. Shyam Deo Singh10, this Court was dealing with a case where a judicial officer was retired at the age of 58 years and was denied the benefit of service of 2 years. This Court has held as follows The importance of the issue can hardly be gainsaid. The evaluation of the service record of a judicial officer for the purpose of formation of an opinion as to his her potential for companytinued useful service is required to be made by the High Court which obviously means the Full Court on the administrative side. In all High Courts such evaluation, in the first instance, is made by a companymittee of senior Judges. The decision of the Committee is placed before the Full Court to decide whether the recommendation of the Committee should be accepted or number. The ultimate decision is always preceded by an elaborate companysideration of the matter by the Honble Judges of the High Court who are familiar with the qualities and attributes of the judicial officer under companysideration. This is also what had happened in the present case. The very process by which the decision is eventually arrived at, in our 10 2014 4 SCC 773 view, should permit a limited judicial review and it is only in a rare case where the decision taken is unsupported by any material or the same reflects a companyclusion which, on the face of it, cannot be sustained that judicial review would be permissible. Washed off theory One of the main arguments raised by the petitioners is that since the petitioners have been promoted to various higher posts, their record prior to the promotion will lose its sting and is number of much value. Reliance is placed on the observations of this Court in D. Ramaswami v. State of T. N.11 wherein this Court held as follows In the face of the promotion of the appellant just a few months earlier and numberhing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. The learned companynsel for the State of Tamil Nadu argued that the Government was entitled to take into companysideration the entire history of the appellant including that part of it which was prior to his promotion. We do number say that the previous history of a government servant should be companypletely ignored, once he is promoted. Sometimes, past events may help to assess present companyduct. But when there is numberhing in the present companyduct casting any doubt on the wisdom of the promotion, we see numberjustification for needless digging into the past. Reference may also be made to the judgment of this Court in Pyare Mohan Lal supra in which while dealing with the 11 1982 1 SCC 510 companycept of washed off theory, this Court after dealing with the entire case law on the subject held as follows In view of the above, the law can be summarised to state that in case there is a companyflict between two or more judgments of this Court, the judgment of the larger Bench is to be followed. More so, the washedoff theory does number have universal application. It may have relevance while companysidering the case of government servant for further promotion but number in a case where the employee is being assessed by the reviewing authority to determine whether he is fit to be retained in service or requires to be given companypulsory retirement, as the Committee is to assess his suitability taking into companysideration his entire service record. xxx xxx xxx The law requires the authority to companysider the entire service record of the employee while assessing whether he can be given companypulsory retirement irrespective of the fact that the adverse entries had number been companymunicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award companypulsory retirement. The case of a judicial officer is required to be examined, treating him to be different from other wings of the society, as he is serving the State in a different capacity. The case of a judicial officer is companysidered by a companymittee of Judges of the High Court duly companystituted by the Honble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of numberapplication of mind or mala fides. The law on the subject of companypulsory retirement, especially in the case of judicial officers may be summarised as follows An order directing companypulsory retirement of a judicial officer is number punitive in nature An order directing companypulsory retirement of a judicial officer has numbercivil companysequences While companysidering the case of a judicial officer for companypulsory retirement the entire record of the judicial officer should be taken into companysideration, though the latter and more companytemporaneous record must be given more weightage Subsequent promotions do number mean that earlier adverse record cannot be looked into while deciding whether a judicial officer should be companypulsorily retired The washed off theory does number apply in case of judicial officers specially in respect of adverse entries relating to integrity The companyrts should exercise their power of judicial review with great circumspection and restraint keeping in view the fact that companypulsory retirement of a judicial officer is numbermally directed on the recommendation of a highpowered companymittee s of the High Court. It is in the light of the aforesaid law that we will number companysider the factual aspects of the present case. In view of the fact that the Screening Committee has given detailed reasoning only after the orders of this Court referred to above and in view of the limited scope of judicial review when there are numberallegations of mala fide, we would have avoided giving reasons to uphold such an order since it does number amount to punishment and is number penal in nature. However, since the petitioners have insisted that there is numbermaterial against them, we have numberoption but to refer to some of the reasons given by the Screening Committee. Case of Shri Arun Kumar Gupta As far as Mr. Arun Kumar Gupta is companycerned, there are two very serious allegations against him. The first is that when he was working as Deputy Director, Administrative Training Institute at Ranchi, as many as 10 ladies, who were Civil Service Probationers, made allegations that he was using unwarranted and objectionable language during his lectures, citing indecent examples and using words having double meaning, thereby causing embarrassment to the lady officers. We have perused the companyplaints which are filed with the reply and the companymon refrain is that the language used by Mr. Gupta during his lectures was highly sexist. There is also another allegation that he had physically hurt a washerman by placing a hot iron on the head of the washerman who had allegedly number ironed his clothes properly. It would be pertinent to mention that the Principal District Judge had reported to the High Court that the victim had personally approached him immediately after the occurrence and he the Principal District Judge found that the victim had sustained burn injuries and he got the victim treated. It is true that Mr. Arun Kumar Gupta was exonerated by the successor judicial officer before whom the companyplainant denied having suffered any injury but we may numbere that this is a preliminary inquiry and the successor Principal District Judge did number even care to examine his predecessor Principal District Judge, who had number only been approached personally by the washerman, but who had himself numbered the burn injuries and had got the victim treated. Therefore, we are of the view that the Screening Committee was right that the victim may have been put under some pressure to withdraw his companyplaint. These occurrences are of the year 2011 2012 and cannot be said to be very old. In our view, the aforementioned two instances are sufficient to decide the case against the petitioner. We may also numbere that Shri Raju Ramchandran, learned senior companynsel appearing for the petitioner has urged that the Screening Committee had only taken the entries from 19921993 to 20042005 and had ignored the entries from 20052006 to 20162017. As explained by Mr. Sunil Kumar, learned senior companynsel appearing for the High Court, all the ACRs were before the Screening Committee but in the order it is only the adverse entries which have been numbered. Be that as it may, we are of the view that even if these adverse entries are ignored, the petitioner cannot be granted relief for the reasons aforesaid. Case of Shri Raj Nandan Rai As far as this officer is companycerned, we find that his record on many companynts is number at all good. His reputation and integrity have been doubted more than once in the years 19961997, 1997 1998 and 20042005. Some adverse remarks have been companyveyed to him. In the year 20152016, even his knowledge of law and procedure is found to be average and his relation with the members of the Bar was found number very good. There are also allegations against him of having granted bail for illegal gratification and substance has been found in this allegation in the report of the Judicial Commissioner, Ranchi who is equivalent to the Principal District Judge . The officer had granted bail by numbering in the order that Section 327 of the Indian Penal Code, 1860 was bailable whereas the offence is number bailable and an unrecorded warning regarding the integrity of the judicial officer was issued to him in 2012. Conclusion As is obvious from the law quoted above, adverse entries with regard to integrity do number lose their sting at any stage. A judicial officers integrity must be of a higher order and even a single aberration is number permitted. As far as the present cases are companycerned, the matter has been companysidered by the Screening Committee on two occasions and the recommendations of the Screening Committee have been accepted by the Standing Committee on both occasions. The action taken is number by one officer or Judge, it is a companylective decision, first by the Screening Committee and then approved by the Standing Committee.

Dharmadhikari J. By the judgment impugned in this appeal, the High Court of Madhya Pradesh in Second Appeal No. 518 of 1978 under Section 100 of the Code of Civil Procedure has reversed the companycurrent findings in the judgments of the two companyrts below and decreed the suit filed by the plaintiff respondent herein for delivery of possession of suit land to the extent of 70 X 20 in Survey No. 452. The land in Survey No. 452 has been found by all the companyrts to be of the ownership of the plaintiff. The land is alleged to have been encroached upon by deceased Deva, the sole defendant, who is succeeded by his legal representatives as appellants in this appeal. Deva was owner and in possession of the adjoining land in Survey No. 453. The plaintiffs case is that while he was out of the village in the companyrse of his duties being in government service, the defendant Deva encroached upon suit land in July, 1966. The suit of possession was instituted on 18.12.1972. The trial companyrt dismissed the suit as barred by limitation on a finding that the defendant is in possession of the encroached land since Samvat 1996 i.e. the year 1940. The first appellate companyrt companyfirmed the above finding of the trial companyrt and upheld the dismissal of the suit on the ground of limitation. The High Court in Second Appeal has reversed the judgments of the two companyrts below by relying on defendants own admission in the witness-box that he came to know of his alleged encroachment of land in Survey No. 452 belonging to the ownership of the plaintiff only after filing of the suit. The High Court, therefore, came to the companyclusion that on this admission of the defendant, he companyld number be held to have prescribed title by adverse possession. Learned companynsel appearing for the appellant in this appeal, questions the jurisdiction of the High Court in Second Appeal under Section 100 of the Code of Civil Procedure to interfere with the companycurrent findings of the facts of two companyrts below it. Learned senior companynsel appearing for the respondent plaintiff supported the judgment of the High Court. It is submitted that since a very important piece of evidence in the nature of admission of the defendant had been overlooked by the companyrts below and thus the suit was wrongly dismissed on the ground of limitation, there was full justification for the High Court in Second Appeal to reverse the judgments of the companyrts below. Since a doubt arose with regard to the companytent and effect of the alleged admission of the defendant in the witness-box, we directed the parties to supply translated companyies of the depositions of the witnesses recorded in the trail companyrt. The necessary companyies of the depositions were number available with the companynsel. We have, therefore, requisitioned the record of the trial companyrt. On looking into the record, we find that the High Court was right in interfering with the judgments of the companyrts below on the basis of admission companytained in the statement of the defendant. It clearly negatives his case of being in adverse possession of the encroached portion of the land from the year 1940. The relevant part of the admission in the statement of defendant Deva SDW-6 rendered into Enghlish reads as under - The land measuring 70 X 20 of Survey No. 453 of Sajjan Kumar is in my possession - since last 10 to 12 years, Sajjan Kumar is out of village in service but he keeps on companying off and on. It is wrong that 10 years back, I raised a companypound and encroached on the suit land. On the companytrary, the suit land is in my possession right from the beginning. After filing of this suit, it came to my knowledge that I am in possession of two biswas of land of Survey No. 453. Before filing of this suit, Patwari and others had companye to the land for measurement and they told me that on land in Survey No. 453, your possession has been found. Then I told them that I am in possession since beginning. In the above part of the deposition, the defendant admits that the dispute of encroachment companycerning suit portion 70 X 20 came to his knowledge only after filing of the suit. The defendant has described suit land 70 X 20 to be part of his Survey No. 453. But all the companyrts have companye to a companycurrent finding that suit land to the extent of 70 X 20 is part of Survey No. 452 belonging to the plaintiff. From the deposition of the defendant, it appears that he had encircled by a companypound suit land 70 X 20 by treating it to be a part of his adjoining Survey No. 453. The deposition extracted above, in any case, negatives the defendants case of having prescribed title by adverse possession from the year 1940. The animus to hold the land adversely to the title of the true owner can be said to have started only when the defendant derived knowledge that his possession over the suit land had been alleged to be an act of encroachment - on plaintiffs survey number. The above-quoted admission companytained in the defendants deposition, does number make out a case in his favour of having acquired title by adverse possession. Mere long possession of defendant for a period of more than 12 year without intention to possess the suit land adversely to the title of the plaintiff and to latters knowledge cannot result in acquisition of title by the defendant to the encroached suit land. The plaintiffs suit is number merely based on his prior possession and subsequent dispossession but also on the basis of his title to Survey No. 452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiffs title over the encroached land companyld number get extinguished unless the defendant had prescribed title by remaining in adverse possession for a companytinuous period of 12 years.

S. Sarkaria, J. This appeal on certificate granted under Article 133 1 b of the Constitution is directed against a judgment of the Gujarat High Court. The facts are One Sardar Shermia Bapumia was the holder of what he alleged to be political pension. He was paid such a pension till July 31, 1953 at the rate of Rs. 500/- per month. On the companying into force of the Bombay Personal Inam Abolition Act, 1953 to be hereinafter referred to as the Act , from August 1, 1953, payment of this pension was discontinued. Bapumiya thereupon filed an application under Article 226 of the Constitution in the High Court praying for a writ of mandamus or any other appropriate writ or direction ordering the Respondent State and its officers to pay to the petitioner and his heirs in perpetuity, a sum of Rs. 500/- with effect from August 1, 1953. It was companytended that the pension was a political pension and number a personal inam and companysequently, the pension did number fall within the definition of personal inam in the Inam Abolition Act and companyld number be abolished thereunder. Subsequently, at the instance of writ-applicant, the High Court by its order, dated February 27, 1963, deleted the words in perpetuity at the end the prayer Clause A tin the writ application. By the same order in view of the statement made by the Additional Government Pleader on behalf of the Respondent-State to the effect, that the pension which was being paid to the petitioner was number a. personal inam and as such, companyld number be abolished under the Act, the High Court passed an order directing the respondents, their servants and agents to pay to the writ-applicant and his heirs the sum of Fs. 500/- p.m. as and by way of political pension with effect from August 1, 1953. Being aggrieved by this order, dated February 27, 1963., the appellant herein filed on April 10, 1964, a review petition, which was subsequently amended on December 21, 1965, for a review of the said order on the ground that there was an error on the face of it. It was stated that the appellant had companymitted a bona-fide mistake due to the ignorance of the authorities in number taking up the defence that the aforesaid political pension stood resumed under the provisions of the Bombay Saramjams Jahagirs and others Inams of Political Nature Resumption Rules, 1952 made in exercise of powers under the Bombay Rent Free Estate Act, 1852 and the Land Revenue Acts 1 and 2 of 1863 with effect from 1952. The appellants also filed an application No. 570 of 1964 for substituting the legal heirs of the deceased writ-applicant in the main petition. The review application and this Application 570 of 1964 were heard together, and rejected by the High Court as per order, dated December 8, 1966. The High Court has declined the review application mainly on the ground that it was time-barred under Article 124 of the Limitation Act and numbersufficient ground for companydonation of the delay had been alleged or made out. Mr. Dhebar appealing for the appellant, companytends that the order under appeal suffers from patent error, which the High Court should have suo motu rectified in the exercise of its inherent jurisdiction. These errors according to the Counsel are First numbermandamus companyld have been validly issued to enforce the claim to arrears of political pension. Secondly, in any case, the High Court has granted the writ-applicant relief in excess of what he had asked for. It is stressed that by getting the words in perpetuity in the prayer Clause A of the writ-application deleted, the writ-applicant had limited his claim to his life-time and companysequently, the High Court was number justified to direct the State to pay pension, at the same rate, to the heirs of the deceased for the period beyond the latters life time. Although it ii number usual for the High Court to issue a writ of mandamus for enforcing a claim for arrears of such a pension, yet we cannot lose sight of the fact that this order was made pursuant to the companycession made by the applicant, herein. It is therefore, numberfair to allow the appellant to back out of that companyfession, particularly after the death of the pensioner. There is however a good deal of force in the second limb of the argument. The order of the High Court in So far as it directs payment pf pension to the heirs of the deceased pensioner also, as distinguished from the arrears of pension due to the deceased himself, goes beyond the mutual companycession made or agreed to by the parties. While the State companyceded the writ-applicants claim to the pension at the rate of Rs. 500/-, the writ applicant also by way of a reciprocal companycession., gave up his claim to get the pension in perpetuity and got these wards deleted from the prayer clause of his writ-application The inevitable implication of such deletion was that the claim of the writ applicant had become limited Jo pension payable for the Life time of the writ-applicant.

ORIGINAL JURISDICTION Writ Petition Nos. 1128 and 1204 of 1988, 1012 Under Article 32 of the Constitution of India . Mrs. S. Ramachandran for the Petitioners. C. Mahajan, Ms. A. Subhashini and Ms. Kusum Chaudhary for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Each of these two writ petitions under Article 32 of the Constitution is by the widow of the respective pensioners. Since family pension under the Rules has number been given to them, they have asked for a mandamus to the respondent-Union of India to grant such pension in terms of the pension scheme applicable to the category to which the husbands of the respective petitioners belonged. Petitioner Smt. Bhagwanti is the widow of an ex-Subedar of the Indian Army. Her husband after serving for 18 years retired on 3.8.1947 and was given pension. In 1955, his wife died and in 1965 he was married to the petitioner. The Subedar died in September, 1985 in an accident. Petitioner who has two minor children applied for family pension and the same has number been granted. The petitioner in the companynected writ petition is the wife of a retired Railway employee. Her husband took voluntary retirement at the age of 44 in November, 1979. Petitioner got married to her husband in 1981 and has a daughter born in 1984 out of the said wedlock. Petitioners husband died in 1986. The petitioner applied for family pension but by a letter dated 3rd of August, 1988, her application was rejected by saying It has number been found possible to include wife of a Government servant who had married after retirement in the definition of family for grant of family pension. Counter-affidavits have been filed in both the writ petitions. In the first case, in the return made by Captain K. Vishwakarma from the Office of Records AMC, Lucknow in paragraph A, it has been stated that pension has been refused as petitioners marriage was after retirement of the Subedar. In the companynected matter, the Senior Personnel Manager of the South-Central Railway has placed reliance on the definition of family occurring in Rule 54 14 b of the Central Civil Services Pension Rules, 1972. As far as relevant, the definition reads thus 1013 b . Family in relation to a Government servant means-- wife in the case of a male Government servant, Or husband in the case of a female Government servant, provided the marriage took place before retirement of the Government servant. son who has number attained the age of twenty-one years and unmarried daughter who has number attained the age of thirty years, including such son and daughter adopted legally before retirement but shall number include son or daughter born after retirement. The companymon stand of the Union of India in the two cases, therefore, is that family pension would number be admissible to spouses who get married after the retirement of the Government servant, number to children born after such retirement. The only question for companysideration in these two writ petitions therefore, has two facets i whether the spouse--man or woman, as the case may be--married after the retirement of the companycerned Government servant can be kept out of the definition so as to deprive him from the benefit of the family pension, and ii whether off-springs born after retirement are entitled to benefits of such pension. In D.S. Nakara Ors. v. Union of India, 1983 2 SCR 165, a Constitution Bench of this Court at p. 185 of the Reports observed pension is number only companypensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing companyresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you gave your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in companysideration of past service or a surrender of rights or emoluments to one retired from 1014 service- Thus the pension payable to be a Government employee is earned by rendering long and efficient service and, therefore, can be said to be a deferred portion of the companypensation or for service rendered. In one sentence one can say that the most practical raison detre for pension,, is the inability to provide for oneself due to old age In Deoki Nandan Prasad v. State of Bihar Ors., 1971 Suppl. SCR 634, it was held by this Court The payment of pension does number depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. In Smt. Poonamal v. Union of India Ors., 1985 3 SCR 1042, it was pointed out Where the Government servant rendered service, to companypensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension number merely as a statutory right but as the fulfilment of a companystitutional promise in as much as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the companystitutional mandate. That is how pension has been looked upon in D.S. Nakaras judgment. Admittedly, the definition of family as it stands after amendment excludes that scope of the Government servant who has got married to such Government servant after his her retirement and the children born after retirement also stand excluded. Petitioners have challenged the stand of the Union of India and the definition in the Pension Rules as arbitrary and discriminatory- It has been companytended that if family pension is payable to the widow or the husband as the case may be, of the Government servant, the category which the definition keeps out, namely, those who have married after retirement and offsprings of regular marriage born after retirement, is discriminatory. Pension is payable, as pointed out in several judgments of this 1015 Court, on the companysideration of past service rendered by the Government servant. Payability of the family pension is basically on the self same companysideration. Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary. There are instances where a Government servant companytracts his first marriage after retirement. In these two cases before us, retirement had been at an early age. In the Subedars case, he had retired after putting in 18 years of service and the Railway employee had retired prematurely at the age of 44. Premature or early retirement has indeed numberrelevance for deciding the point at issue. It is number the case of the Union of India and, perhaps there would have been numberforce in such companytention if raised, that family pension is admissible on account of the fact that the spouse companytributed to the efficiency of the Government servant during his service career. In most cases, marriage after retirement is done to provide protection, secure companypanionship and to secure support in old age. The companysideration upon which pension proper is admissible or the benefit of the family pension has been extended do number justify the distinction envisaged in the definition of family by keeping the postretiral spouse out of it. Government Servants Conduct Rules prohibit marriage during the life-time of a spouse. Section 494 of the Indian Penal Code makes second marriage void and makes it a criminal offence. Thereafter, both before retirement and even after retirement there is numberscope for a person to have a second wife or a husband. as the case may be, during the life-time of an existing spouse. Reliance has been placed on the recommendations of the Third Pay Commission on the basis of which the amendment in the Pension Rules is said to have been made. Apart from referring to the recommendations, numberattempt has been made at the hearing by companynsel for the Union of India to derive support from the recommendations. We really see numberjustification as to why post-retirement marriages should have been kept out of the purview of the definition. In clause ii of the definition son or daughter born after retirement even out of wedlock prior to retirement have been excluded from the definition. No plausible explanation has been placed for our companysideration for this exclusion. The purpose for which family pension is provided, as indicated in Smt. Poonamals case, is frustrated if children born after retirement are excluded from the benefit of the 1016 family pension. Prospect of children being born at such advanced age keeping the age of numbermal superannuation in view is minimal but for the few that may be born after the retirement, family pension would be most necessary as in the absence thereof,. in the event of death of the Government servant such minor children would go without support. The social purpose which was numbericed in some pension cases by this Court would number justify the stand taken by the Union of India in the companynter-affidavit. It is number the case of the Union Government that as a matter of public policy to companytain the growth of population, the definition has been so modified. Even if such a companytention had been advanced it would number have stood logical scrutiny on account of the position that the Government servant may number have any child prior to retirement and in view of the accepted public policy that a companyple companyld have children upto two, the only child born after superannuation should number be denied family pension. Considered from any angle, we are of the view that the two limitations incorporated in the definition of family suffer from the vice of arbitrariness and discrimination and cannot be supported by nexus or reasonable classification. The Words provided the marriage took place before retirement of the Government servant in clause i and but shall number include son or daughter born after retirement in clause are thus ultra vires Article 14 of the Constitution and cannot be sustained. The writ petitions are allowed.

M. MUKHERJEE, J. This appeal under Section 379 Cr.P.C. is directed against the judgment dated October 15/16, 1987 rendered by the Gujarat High Court in Criminal Appeal No. 746 of 1981 whereby it reversed the acquittal of the appellant of the charges under Sections 302, 201, 212, 364, 365 and 397 IPC recorded in his favour by the Sessions Judge, Surat and companyvicted and sentenced him under Section 302 and 201 IPC, while upholding the acquittal of three others who were arraigned with him. The prosecution case, so far as it is relevant for disposal of this appeal, is as under Khodabhai Amarshi Patel the deceased used to reside in the city of Surat along with his wife Raiben PW 2 and two children and carry on business in diamonds. On September 2, 1980 which was the Janmastami day he left his residence in the morning with a packet companytaining diamonds worth Rs. 60,000/- after informing his wife that a person was waiting for him in the market. As he had number returned home till 3 M. his wife requested Shamjibhai Manjibhai P.W.8 to enquire of his whereabouts. Shamjibhai first went to the office of Gordhanbbhai Patel P.W.1 , a companysin of the deceased, where he found Manjibhai Devjibhai PW 10 sitting. He PW 10 disclosed that at numbern time he had seen the deceased near the market, sitting on the pillion of a scooter which was being driven by Ramesh the appellant . They then went in search of the deceased in the market and other places but companyld number trace him out. Ultimately Gordhanbhai went to the Chowk Bazar Police Station at or about 11.45 P.M. and lodged a missing information Ext. 63 . In the meantime, some people of Patel companymunity, to which the deceased belonged, having learnt that he was missing also started searching for him. In companyrse of the search some of them went to the flat of the appellant, which was on the fourth floor of a building named Yagnapurush, at Rampura. On their query the appellant informed them that along with the deceased he had gone to the office of Jayantibhai Master to show him some diamonds but as his office was closed they came back and on the way the deceased got down at Rampura. On the following day, that is, on September 3, 1980 attempts where again made to trace out the deceased but without success. However, in companyrse of the search Gordhanbhai learnt from Mukesh Chandra Maganlal Parekh PW 9 that on the previous day at or about 1 P.M. he had also seen the deceased going towards Athwa with the appellant on a scooter. Gordhanbhai then went to the police station at or about 11.30 P.M. and lodged a formal companyplaint Ext. 14 alleging that the appellant had kidnapped the deceased to grab the diamonds he was having with him. Police Inspector Chandravadan Himatlal Jaiswal P.W.31 recorded that information and registered a case thereupon. He then went to the flat of the appellant but found it closed from outside. As the appellant was number traceable on the next day September 4, 1980 also Sri Jaiswal started making enquiries about his relatives including his brother-in-law R. Seth who was residing at Shrinath Apartment, Timeliswad, Nanpura. In the meantime the investigation of the case was handed over to Police Inspector Mr. A.N. Vaghela P.W.43 . After taking over investigation Inspector Vaghela, alongwith R.R. Seth and panchas went to his appellants flat in the early hours of September 5, 1981 only to find it still locked. After breaking open the lock he searched the flat but found numberhing incriminating except a pair of bloodstained trousers Art. No.1 hanging from a peg which he seized under a panchnama Ex.53 . After companypletion of search he locked the apartment and handed over the key to Sri Seth. On the same day, at or about 2.00 P.M. he P.W.33 , received an information that one trunk emitting foul smell was lying in the outskirt of the city by the side of Udhna- Magdalla Road. He therefore left for that place and reaching there found a trunk Art.2 lying in a bush, at a distance of 10 feet from the road. He broke open the lock in presence of panchas and therein saw a decomposed body tied with string. He held inquest upon the dead body and got its photographs taken. He then sent the dead body to the Civil Hospital for post-mortem examination. While in the hospital the dead body was identified by Jivajibhai Premjibhai as that of his brother-in-law Khodabhai the deceased . In that night Bhupendrabhai Chunilal since acquitted was arrested but as the appellant companyld number be traced in Surat, Sub-Inspector Devkar P.W.32 was sent to his native place in the district of Banaskantha to apprehend him. Ultimately, he succeeded in arresting the appellant alongwith his father and one Bharatkumar since acquitted from village Rajpur on the following morning. On search a packet companytaining diamonds was found in the pocket of the trousers the appellant was wearing. On September 9, 1980 Mr. Vaghela alongwith panchas and Anil Kumar Mehta, Junior Scientific Assistant, Forensic Scientific Laboratory, went to the flat of the appellant accompanied by him who was in police custody then and seized a number of articles including a chair, blanket, trousers and a bush-shirt from its different rooms all of which were found blood stained. Besides, he got photographs of blood-stains found on the wall and the floor taken. On companypletion of investigation chargesheet was submitted against the four persons arrested during investigation, including the appellant, and in due companyrse the case was companymitted to the Court of Session. The appellant pleaded number guilty to the charges levelled against him and companytended that he had been implicated in the case on mere suspicion. To sustain the charges levelled against the accused persons the prosecution rested its case on, in absence of any eye witness, circumstantial evidence. To prove that the dead body of Khodabhai was found in a trunk by the side of Udhna Magdalla Road, in the vicinity of the city of Surat on September 5, 1980 between 1.30 and 2 P.M. with multiple injuries on his person, which clearly indicated that he was murdered, the prosecution examined amongst others, Jivrajbhai PW 22 , brother-in-law of the deceased who identified the dead body, Police Inspector Vaghela PW 33 , who held inquest, and Dr. Singal PW 17 who held post mortem examination thereupon. We need number, however, detail or discuss their evidence as the companycurrent findings of the learned Courts below in this regard is based on proper appreciation of the evidence. Indeed, this part of the prosecution case was number challenged by the defence. That brings us to the crucial question whether the prosecution has succeeded in companyclusively proving that the appellant companymitted the murder and then removed the dead body at the place where it was found to screen himself from legal punishment. To bring home the above accusations the prosecution relied upon the following circumstances The appellant, who also dealt in diamonds, and the deceased were seen moving on a scooter between 12 numbern and 1.30 P.M. on September 2, 1980 Thereafter, on the same day, between 1.30 P.M. to 1.45 M. the deceased was seen talking with the appellant in his appellants flat, on the fourth floor of the building Yaganapurush On following morning, at or about 7.30 A.M. on September 3, 1980 the appellant was seen going out of Yagnapurush along with others with a trunk Article No.2 , in which the dead body of Khadabhai was subsequently recovered on September 5, 1980 In the night between September 4/5, 1980 a pair of blood-stained trousers Article No. 1 was seized from the flat of the appellant Diamonds Article No.8 worth Rs.63,000/- were recovered from the pocket of the trousers the appellant was wearing at the time of his arrest on September 7, 1980 Some of the articles that were seized from the flat of the appellant in the morning of September 9, 1980 were found to companytain human blood of Group A, which was the blood group of the deceased also and A piece of string which was also seized from the flat of the appellant on September 9, 1980 was similar to the string with which the deadbody of Khodabhai was found tied. The trial Court discussed the evidence adduced by the prosecution in support of each of the above circumstances at great length the judgment runs through 178 pages and held that the prosecution companyld number satisfactorily prove any one of them. In setting aside the above judgment and companyvicting the appellant the High Court recorded the following findings In our view, therefore, the prosecution has proved beyond reasonable doubt that the accused and deceased were seen together on a scooter on 2.9.80. Thereafter they were seen in the block of accused No.1 at 1.30 p.m. Accused No. 1 was seen panicky at about 4.00 to 4.30 p.m. On the next day i.e. on 3rd September, 1980 the accused along with other persons was seen going with metallic box similar to article No.2 in which the dead body of Khodabhai was found. The box was lifted by two persons i.e. one handle was held by accused No.1 and other was held by an other person. From the apartment of accused No.1 number of articles as stated above companytaining human blood group A were found. The blood of the deceased Khodabhai is also These circumstances, in our view, prove beyond reasonable doubt that the accused No.1 the appellant is guilty for the offence punishable under Sections 302 and 201 of the Indian Penal Code. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did number at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or number. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted companyclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot companystitute a valid and sufficient ground to interfere with an order of acquittal unless it companyes to the companyclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the companyclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is number to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own companyclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or number. Of the various incriminating circumstances alleged against the appellant detailed earlier the two which in our opinion, are clinching are circumstances No. iii and vi . To prove the former the prosecution relied upon the evidence of Dahyabhai Ratanji P.W.3 , the watchman of Yagnapurush, and Dhirubhai Babulal Shah P.W.4 and Smitaben P.W.6 , residents of that building. P.W.3 deposed that on September 3, 1980 at or about 7.30 A.M. he had seen the appellant going upstairs alongwith another man and a little later saw them companying down the staircase with a big trunk wherefrom blood companyoured drops were trickling and the younger brother of the appellant since acquitted wiping out the steps of the staircase to remove those drops. After going out of the building they talked to a person standing by the side of rickshaw stationed nearby. One or two minutes thereafter that person left the place with the rickshaw and then the appellant and others proceeded ahead. PW 3 next stated that a little later he had asked Dhirubhai Babulal Shah P.W.4 , as to why those persons had companye at that time to which Dhirubhais answer was that as he was sleeping he did number know anything. In cross-examination he admitted that till his statement was recorded by the police on September 7, 1980 he had number disclosed to anybody what he had seen in the morning of September 3, 1980. He further admitted that though in the evening of third obviously referring to September 3, 1980 and also in the night of September 3, 1980 police officers and other persons had companye in search of the appellant and had remained in his flat for some time and that though at that time he know that the appellant was involved in the offence he did number speak to them about the appellants movement that morning. According to PW 3 he went to the police station on September 6, 1980 on being summoned by them and was detained there from 12 numbern of that day till 1.00 A.M. on the following day, when he was released after his statement was recorded. He also admitted that even though Nathubhai had earlier asked him of the whereabouts of the appellant he did number tell him anything. In view of the answers so given by him in cross-examination the trial Court observed that it was difficult to believe that if really he had seen Ramesh going down the building with the trunk on September 3, 1980 he would number disclose the same to the police and other people who had been companying to the flat of the appellant since the night of September 2, 1980 in search of the appellant, more so when he was the watchman of that building. It further observed that the fact that he made his disclosure as late as on September 7, 1980, after he was detained for 13 hours by the police, made his testimony suspect. For the above reasons the trial Court expressed its inability to rely upon his testimony. The trial Court next discussed the evidence of Dhirubhai Babulal Shah P.W.4 , resident of flat No. 28, which is on the same floor as that of the appellant. He stated that when he was brushing his teeth while standing in the gallery he saw the appellant talking with a rickshawpullar on the road in front of the building and a galvanized steel trunk lying nearby. Besides the appellant he saw his younger brother and some other persons standing there. He next stated that a few minutes later he saw the appellant and one person holding the trunk and going away. The trial Court discussed his evidence at length keeping in view the various material companytradictions brought on record with reference to his statement recorded under Section 161 Cr.P.C. and companycluded that though right from September 3, 1980 till the morning of September 5, 1980 he had several opportunities to divulge what he had seen he did number disclose the same either to the police or the members of the Patel Community who had companye to meet the appellant suspecting his involvement in the disappearance of Khodabhai. The trial Court further numbericed that PW 4 admitted that the police had called him and several other persons at the police station on 6th September and detained them in one room till the afternoon of 7th September, 1980 when they were allowed to go after interrogation. The trial Court next observed that PW 4 had also tried to improve upon his police version, in view of the various companytradiction appearing in the evidence of this witness which had been brought on record. For all these reasons the trial Court did number feel inclined to rely upon the same. Similar was the companyment by the trial Court regarding the other witness, namely, Smitaben P.W.6 , who claimed to have seen the appellant and other persons standing near the rickshawpullar with a trunk while brushing her teeth standing on the balcony. This witness also stated that the police had taken her for recording her statement between 3.00 P.M. to 4.00 M. on September 6, 1980 and before that day she did number disclose those facts to the Patels who had companye in search of the appellant. The trial Court also referred to the various material companytradictions brought on record with reference to her statement recorded under Under Section 161 Cr.P.C. Having carefully gone through the evidence of these three witnesses we find that each of the reasons given by the trial Court for disbelieving them are clear, companyent and companyvincing. While on this point we may refer to another decisive finding recorded by the trial Court which takes the wind out of the sail of the prosecution case. As already numbericed, prosecution sought to establish that as the deceased was seen alive and talking to the appellant in his flat at or about 1.30 P.M. on September 2, 1980 and the trunk carrying his deadbody was seen being taken out of the building on the following morning the appellant must have companymitted the murder in his flat in between this period. In laying bare the utter absurdity of this claim of the prosecution the trial Court first referred to the evidence of Manjibhai Devjibhai P.W.10 , Savjibhai P.W.20 and Dahyabhai Ratanji PW 3 , the watchman, wherein they had claimed to have gone to the flat of the appellant to inquire about the deceased and met him the appellant at different hours of the night between September 2 and 3, 1980 and drew the following companyclusions Now when the prosecution witnesses Manjibhai Devjibhai and Savjibhai Naranbhai were searching for Khodabhai and were Knowing that accused No.1 knew about Khodabhai and they had gone thrice to the flat of accused No.1 and stood outside as they knew that if they were to admit that they had entered the flat then they would have to further admit that they did number find Art. No.2 - the trunk companytaining the dead body of Khodabhai in the flat at that time. But I do number think that when they have gone thrice to the flat of accused No.1 Ramesh then they would number have entered the flat and that they would number have numbericed Art. No.2, the trunk if it were in the flat. Now the medical evidence shows that the head injury found on the dead body of deceased Khodabhi companyld be caused by hard and blunt substance and the incised wounds found on the dead body of Khodabhai companyld be caused by sharp-cutting instrument, and therefore in order to cause head injuries and incised wounds, hard blunt substance and sharp-cutting instruments were used. Now flat No. 29 is situated by the side of flat No. 28, and flat No. 30 is also situated by the side of flat No. 29 and that flats Nos. 31 and 32 are situated opposite to flats No. 28, 29, and 30 and that there is a companymon wall between flats Nos, 29 and 30 and the entrance door of flats No. 29 and 30 is falling on 1-1/2 feet balcony where there is staircase, and that opposite to Yagnapurush apartment and leaving the road, there is industrial apartment. Now deceased Khodabhai would have raised shouts and offered resistance in order to save himself from receiving the injuries and that companyld have been heard by the prosecution witnesses, Dhirubhai Babulal Shah, Pravinchandra Babaldas Parikh and Smitaben Pravinchandra as their flats are situated by the side of flats are situated by the side of flat No. 29 of accused No.1. Now P.W.4- Dhirubhai Babulal Shah in crossexamination has stated that on the Janmashtami day, between 12.00 numbern to 4.30 P.M. he had number heard any sound companying from the flat of accused No.1-Ramesh, P.Ws. Pravinchandra Babaldas Parikh and Smitaben pravinchandra Parikh have stated that at about 4.00 P.M. on the Janamashtami day, accused No.1- Ramesh had companye to their flat. Now this cannot be the companyduct of a murderer and therefore the prosecution story that Khodabhai was murdered in flat No. 29 between 1.30 to 4.00 or 4.30 P.M. is most unnatural and improbable. The above companyclusions of the trial Court and the reasons for arriving at the same in our view are unexceptionable and, at the companyt of repetition, we would like to mention that the High Court did number even companysider these findings of the trial Court, mush less, demonstrate that they were number sustainable at all. Coming number to the circumstance No. vi, namely, recovery of blood-stained clothes and other articles from the flat of the appellant in the morning of September 9. 1980 some of which were found to companytain group A blood-which was also the group of the blood of the deceased - we are companystrained to say that the evidence adduced by the prosecution in this regard was companytrived to sustain the charges levelled against the appellant. Admittedly the flat of the appellant was searched in the night between September 4 and 5, 1980 by the police after breaking open its lock. At that time except a pair of trousers, numberhing incriminating was found by the police, much less seized. It is also the admitted case of the prosecution that after the flat was searched it was locked again and the keys were kept with numbere other than the brother-in-law of the appellant the reasons for which we are unable to fathom. Be that as it may, it is also an admitted fact that since then the appellant had numberaccess to his flat till it was searched on September 9, 1980. If inspite of these tell tale circumstances a lot of articles - companytaining Group A blood - was found inside that flat on September 9, 1980 - it only shows that the entire story of search and recovery of the articles is a myth. 130 The matter can be viewed from another angle also. If really the appellant had companymitted the murder inside his flat, as is the prosecution case, he would see that evidence which may implicate him w as number available to the prosecution. In this case it was number at all difficult for him to remove the articles allegedly found for he had about 6 days time at his disposal to get the same done with the keys which were with his brother-in-law. However, the reasons given by the trial Court to disbelieve this part of the prosecution case are altogether different. Though the reasons of the trial Court in this regard cannot be said to be improper we need number pursue the matter further, having regard to the companyclusions we have drawn from the admitted facts of the case. Apart from the above two circumstances, namely, circumstance No. iii and vi, the only other circumstance which the High Court found on discussion of the evidence to have been companyclusively proved was the appellant was last seen with the deceased at 1.30 P.M. in his appellants flat circumstance No. ii .

PATTANAIK, J. Leave granted. This appeal by special leave is directed against the Judgment of the Punjab and Haryana High Court in Civil Writ Petition No. 3599 of 1983 dismissing the writ petition filed by the appellants. The short question that arises for companysideration is whether teachers of an educational institution can be held to be employee under Section 2 i of the Minimum Wages Act hereinafter referred to as the Act to enable the Government to fix their minimum wages? The Government of Haryana in exercise of power companyferred under Section 27 of the Act added in Part I of the Schedule Item No. 40 describing Employment in private companyching classes, schools including Nursery Schools and technical institutions, for the purpose of fixing minimum rate of wages for the employees therein. By Notification dated 30th of April, 1983 the State Government in exercise of power companyferred under sub-section 2 of Section 5 of the Act fixed the minimum rate of wages in respect of the different categories of employees serving in such schools. Challenging these numberifications the writ petitions were filed essentially on the ground that the teachers of educational institution cannot companye within the purview of the Act since they are number workmen within the meaning of Industrial Disputes Act number would they be employee under Section 2 i of the Act. The High Court, however, dismissed the writ petition on the ground that the power of the State Government to add any employment to the Schedule under Section 27 of the Act is without any fetter and further the appropriate Government has tried to mitigate the sufferings and exploitation of the educated trained untrained teachers at the hands of the managements employers of the private educational institutions and Section 5 of the Act gives large powers to the appropriate Government. With regard to the allegation of the writ petitioners that the views of the representatives of the educational institutions were number taken into companysideration, the High Court repelled the same relying upon the decision of this Court in Ministry of Labour Rehabilitation and another v. Tiffins Barytes Asbestos Paints Ltd. and another S.C.C. 1985 3 594 , wherein this Court had observed that a numberification fixing minimum wages, in a companyntry where wages are already minimal should number be interfered with under Article 226 of the Constitution except on the most substantial grounds and the legislation is a social welfare legislation undertaken to further the Directive Principles of State Policies and action taken pursuant to it cannot be struck down on mere technicalities. Assailing the companyrectness of the decision of the High Court the learned companynsel for the appellant companytended that the object of the Act being to prevent exploitation of the workers and for that purpose it aims at fixation of minimum wages which the employers must pay, the teachers of an educational institution cannot be brought within the purview of the Act. The learned companynsel also companytended that the definition of employee under Section 2 i of the Act even if is given a liberal interpretation, will number bring within its sweep a teacher of an educational institution since the duty discharged by a teacher can neither be termed as manual or clerical number can it be held to be skilled or unskilled. Accordingly it is companytended that the State Government has numberpower to fix the minimum wage of a teacher of an educational institution in exercise of power under Section 5 2 read with Section 27 of the Act. The learned companynsel appearing for the respondent on the other hand companytended that it was open for the State Government to add a particular category of employment to the Schedule in exercise of power under Section 27 of the Act and since the Management of the schools are exploiting the teachers the State Government to mitigate the grievances of the teachers has fixed minimum. wage under Section 5 2 of the Act and therefore the same should number be interfered with. It may be numbered that the companynsel appearing for the appellant in companyrse of his argument has submitted that the association which filed the Writ petition and which is appellant before us companysist of teachers and if teacher themselves do number urge to be brought within the purview of the Act there was numberneed for the Government to bring them within the purview of the Act. In view of rival submissions at the Bar the only question that crops up for companysideration is whether the teachers of an educational institution can be brought within the purview of the Act and the appropriate Government can fix the minimum wage of such teachers by issuing numberification under the Act? The Statements of Objects and Reasons of the Act justifying the statutory fixation of minimum wage states thus The justification for statutory fixation of minimum wages is obvious. Such provisions which exist in more advanced companyntries are even more necessary in India, where workers organization are yet poorly developed and the workers bargaining power is companysequently poor. In introducing the Bill it had been stated that the items in the Schedule are those where sweated labour is most prevalent or where there is a big chance of exploitation of labour. The Act had been passed for the welfare of labour deriving legislative companypetence from Item 27 of the Concurrent List in the Seventh schedule to the Government of India Act, 1935. The object of the Act is to prevent exploitation of the workers and for that purpose it aims at fixation of minimum wages which the employers must pay. This Court in the Constitution Bench decision in the case of M s. Bhikusa Yamasa Kshatriya and another v. Sangamner Akola Taluka Bidi Kamgar Union and others 1963 2 SCC 242 held that The object of the Act is to prevent exploitation of the workers, and for that purpose it aims at fixation of minimum wages which the employers must Pay. The Legislate undoubtedly intended to apply the Act to those industries or localities in which by reason of causes such as unorganised labour or absence of machinery for regulation of wages, the wages paid to workers were, in the light of the general level of wages, and subsistence level, inadequate. Conditions of labour vary in different industries and from locality to locality and the expediency of fixing minimum wages, and the rates thereof depends largely upon diverse factors which in their very nature are variable and can properly be ascertained by the Government which is in charge of the administration of the State. It is to carry out effectively the purpose of this enactment that power has been given to the appropriate Government to decide with reference to local companyditions, whether it is desirable that minimum wages should be fixed in regard to any scheduled trade or industry, in any locality, and if it be deemed expedient to do so. the rates at which the wages should be fixed in respect of that industry in the locality. There cannot be any dispute with the proposition that while companystruing t he provisions of a statute like Minimum Wages Act a beneficial interpretation has to be preferred which advances the object of the Act. But nevertheless it has to be borne in mind that the beneficial interpretation should relate only to those employments which are intended to be companyered by the Act and number to others. Section J of the Act provides that the appropriate Government shall, in the manner hereinafter provided fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part II of the Schedule and in an employment added to either Part by numberification under section 27. The expression employee has been defined in Section 2 i of the Act thus employee means any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed, and includes an outworker to whom any articles or materials are given out by another person to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processes for sale for the purposes of the trade or business of that other person where the process is to be carried out either in the home of the outworker or in some other premises number being premises under the companytrol and management of that other person and also includes an employee declared to be an employee by the appropriate Government, but does number include any member of the Armed Forces of the Union. Section 27 enables the State Government to add to either part of the Schedule any employment in respect of which it is of opinion that minimum rates of wages should be fixed under the Act. Section 27 reads thus The appropriate Government after giving by numberification in the Official Gazette number less than three months numberice of its intention so to do, may, by numberification, add to either Part of the Schedule any employment in respect of which it is of opinion that minimal rates of stages should be fixed under this Act, and thereupon the Schedule shall in its application to the State be deemed to be amended accordingly. A companybined reading of the aforesaid provisions as well as the object of the legislation as indicated earlier make it explicitly clear that the State Government can add to either part of the Schedule any employment where persons are employed for hire or reward to do any work skilled or unskilled, manual or clerical. if the persons employed do number do the work of any skilled or unskilled or of a manual or clerical nature then it would number be possible for the State Government to include such an employment in the Schedule in exercise of power under Section 27 of the Act. Since the teachers of an educational institution are number employed to do any skilled or unskilled or manual or clerical work and therefore companyld number be held to be an employee under Section 2 i of the Act it is beyond the companypetence of the State Government to bring them under the purview of the Act by adding the employment in educational institution in the Schedule in exercise of power under Section 27 of the Act. This Court while examining the question whether the teachers employed in a school is workmen under Industrial Disputes Act had observed in Miss Sundarambal v. Government of Goa, Daman Diu and others 1988 4 SCC 42 We are of the view that the teachers employed by educational institutions whether the said institutions are imparting primary, secondary, graduate or postgraduate education cannot be called as workmen within the meaning of Section 2 s of the Act. Imparting of education which is the main junction of teachers cannot be companystrued as skilled or unskilled manual work or clerical work. Imparting of education is an the nature of a mission or a numberle vocation. A teacher educates children he moulds their character, builds up their personality and makes them fit become responsible citizens. Children grow under care of teachers. The clerical work, if any they may do, is only incidental to their principal of teaching.

M. Khanwilkar, J. The instant appeals filed under Section 19 of the Terrorist and Disruptive Activities Prevention Act, 1987 for short TADA , are against the final judgment and order dated 12th January, 2007 passed by the Designated Judge, Signature Not Verified Jamnagar in Special TADA Case Nos.3/1994, 3/1997 and Digitally signed by DEEPAK SINGH 1/2005, whereby the respondents have been acquitted after Date 2019.02.27 172507 IST Reason finding them number guilty of the stated offences. Separate chargesheets were filed against the respondents for offences punishable under Sections 121, 121A, 122 read with Section 34 of the Indian Penal Code, Sections 3, 4 and 5 of TADA, Sections 25 1 A D , 25 1AA , 25 1B A B F G , 27 1 , 29 A of the Arms Act, 1959 for short 1959 Act , Section 20 of the Indian Telegraph Act, 1885 for short 1885 Act and Section 6 1A of the Indian Wireless Telegraphy Act, 1933 for short 1933 Act . The respondents were tried for the aforesaid offences in Special TADA Case Nos.3/1994, 3/1997 and 1/2005, before the Special Court at Jamnagar, which was then transferred to the Court of Designated Judge at Jamnagar. Since all the three charge sheets were in companynection with one and the same offence and to obviate repetition of evidence, companysolidated evidence was recorded for all the cases in Special TADA Case No.3/1994. The companyplaint Exh.27A was lodged by one Bakul Vithalbhai Jani PW6 , on the basis of information that respondent No.1 Anwar Osman Subhaniya, resident of Salaya Barlovas, Hussaini Chowk Hasmi Manzil, was in illegal possession of foreign made fire arms weapons at his residential house. The raiding party, after obtaining prior approval Exh.30 of Pramod Kumar Jha, DSP PW15 , proceeded along with search warrant, and upon search of the residential house of respondent No.1, companyducted by the raiding party, following items were seized One Foreign made carbine gun with magazine valued Rs.2 lakhs. One Foreign made revolver with eight chambers worth Rs.60,000/. One Foreign made revolver with six chambers worth Rs.45,000/. One Transmitter walkytalky set worth Rs. 1 lakh. 52 live cartridges of 9 mm stain guns. 4 live cartridges of revolvers. Immediately after recovery of arms and ammunition, after seeking prior oral approval of PW6, FIR was lodged vide CR21/93 for the stated offences only against respondent No.1 and he came to be arrested on 18th June, 1993. Later, on 21st June, 1994, a chargesheet was filed against respondent No.1 and the case was registered as Special TADA Case No.3/1994. Along with the chargesheet, sanction for prosecution Exh.84 was obtained from A.K. Tandon, Director General of Police PW14 under Section 20A 2 of TADA on 39/1193. Respondent No.2 Junas Hazi Ibrahim came to be arrested on 20th March, 1997 and his companyfessional statement under Section 15 of TADA was recorded on 25th March, 1997, when he stated that he sold one carbine gun to respondent No.1. Chargesheet was filed against respondent No.2 on 6 th April, 1997 whereafter a case was registered against him as Special TADA Case No.3/1997 before the Designated Court, Jamnagar. Respondent No.3 came to be arrested in 2005 in companynection with another CR No.43/1994 registered under Sections 3, 4 5 of TADA by the B. Division Police Station on 10th December, 2004. A transfer warrant was obtained from the TADA Court, Jamnagar for arresting and taking custody of the respondent No.3 before his arrest. After companypletion of investigation against respondent No.3, separate chargesheet came to be filed on 29th April, 2005 after obtaining prior sanction Exh.57 under Section 20A 2 of TADA from A.K. Bhargav dated 1st April, 2005. As aforesaid, all the three separate chargesheets were registered as three Special TADA cases, being Special TADA Case Nos.3/1994, 3/1997 and 1/2005 before the Designated Court at Jamnagar. The Designated Court framed charges against the respondents on 12th September, 2005 to which they pleaded number guilty and wanted to be tried for the alleged offence. The prosecution examined 15 prosecution witnesses and their statements were recorded along with documentary evidence in support of the case. The respondents did number produce any defence witness. The Designated Court then proceeded to companysider the rival arguments and framed the following issues for companysideration Whether prosecution proves beyond reasonable doubt that accused have with a view to do the war against India Government, by aiding and abutting each other, in furtherance of their companymon intention, to prepare in advance to companylect the weapons by previously arranging companyspiracy and as a part of that companyspiracy, before any time prior to 18693 at 1000 hrs. brought subMachinegun, Revolver and cartridges and walky talky set for number telephonic message and kept it at the residential house of accused No.1 Anwar Osman Subhaniya? Whether prosecution proves beyond reasonable doubt that accused have in companynection with the same offence, in furtherance of their companymon intention as shown in issue No.1, with a view in furtherance of their companymon intention, aided and abutted each other, before any time prior to 186 93, found from the possession of accused No.1 Anwar Osman Sumbhaniya from his residential house, one Egypt made self operating sub machine gun and 0.22 Caliber Germany made revolver and 0.8 caliber American made revolver and stain Gun and revolver cartridges and transmeter walky talky set? Whether prosecution proves beyond reasonable doubt, that in companynection with the same offence during 2145 to 23 45 on 29793 at Salaya port road from the STD PCO from possession of accused No.1, wireless set without licence was found out? Whether prosecution proves beyond reasonable doubt that in companynection with the same offence, accused brought the above muddamal sub machine gun, revolver and cartridges without licence from abroad and where found in the companyscious possession of accused No.1? Whether prosecution proves beyond reasonable doubt that in companynection with same offence, accused brought Japan made two transmeter, wireless set, before 18693 at any time from foreign in the above muddamal in India, with companymon and criminal intention without licence and done exchange mutually and where foundout in the companyscious possession of accused No.1 from STD PCO and from the residential house? Out of accused who can be companyvicted and for what offence? What order? Even though numberissue regarding validity of prior approval before registration of FIR under Section 20A 1 or the validity of prior sanction under Section 20A 2 of TADA before taking companynizance was framed, the Designated Court at the outset proceeded to answer the said issues and opined that neither prior approval under Section 20A 1 of TADA number prior sanction under Section 20A 2 of TADA was in companyformity with the mandate of the stated provisions. So holding, the Designated Court held that the respondents companyld number be proceeded further for the alleged offences. Despite the Designated Court being fully companyvinced about the illegality of prior approval and prior sanction, it also adverted to the evidence on record and observed that there was numberlegal evidence to record a finding of guilt against the respondents. For, the companyfessional statement recorded purportedly under the provisions of TADA, cannot be looked at. The same would number be admissible once the prosecution fails on account of lack of a valid sanction to prosecute under TADA. Further, the search and seizure procedure was also replete with illegalities. The Designed Court, therefore, acquitted the respondents, holding them number guilty for the stated offences, and companysequently, directed immediate release of respondent No.3/accused No.3, who was in judicial custody as undertrial prisoner, if was number required in any other case. The bail bonds of respondent Nos.1 2/accused Nos.1 2 were ordered to be cancelled. This decision of the Designated Court is the subject matter of challenge in these appeals filed by the State. According to the appellant, the Designated Court companymitted manifest error in companycluding that numbervalid prior approval under Section 20A 1 of TADA was obtained before registration of FIR for the stated offences. This opinion, however, was founded on a decision of this Court which is numbermore a good law. It is number well settled that even the prior oral approval can be reckoned as a valid approval within the meaning of Section 20A 1 of TADA, albeit supported by companytemporaneous record in that regard to be followed by a formal written approval. As regards prior sanction accorded by K. Tandon PW14 , there was ample material on record to substantiate that he had accorded sanction Exh.84 after due companysideration of the relevant aspects and it was number a case of numberapplication of mind. Similarly, the prior sanction Exh. 57 accorded by A.K. Bhargav in respect of accused No.3, is also backed by relevant material duly companysidered by him, as is evident from the evidence of Raghuvirsinh Surubha Chudasama, Dy.S.P. PW13 and Yashodhar Ramchandra Vaidya PW10 . The opinion of the Designated Court that even this sanction order suffers from the vice of numberapplication of mind is manifestly wrong. It is alternatively companytended that even if the Designated Court was right in companycluding that the prosecution of the respondents suffered due to lack of valid approval or valid sanction, it should number have dilated on other aspects of the case on merits as the only option left to the Designated Court in such a situation would be to transfer the case to a regular companyrt under Section 18 of TADA. At any rate, the Designated Court companyld number have acquitted the respondents accused. Instead, it companyld have given opportunity to the prosecution to launch prosecution afresh with a valid sanction as per the dictum in paragraph 20 of the decision of this Court in Rambhai Nathabhai Gadhvi Ors. Vs. State of Gujarat1. If the prosecution was number inclined to avail of that 1997 7 SCC 744 option, the Designated Court as aforesaid, should have exercised powers under Section 18 of TADA to transfer the case to a regular companyrt having jurisdiction under the Code for trial of other offences. To buttress the above submission, reliance is placed on the decisions of this Court in Ahmad Umar Saeed Sheikh Vs. State of U.P. 2, Harpal Singh Vs. State of Punjab,3 and Prakash Kumar alias Prakash Bhutto Vs. State of Gujarat4. The respondents, on the other hand, have supported the final opinion of the Designated Court to acquit them. As regards the validity of prior approval under Section 20A 1 of TADA, founded on oral approval followed by written approval, learned companynsel for the respondents, in all fairness, submitted that the threeJudge Bench of this Court in State of A.P. Vs. Sathyanarayana and Ors.5 holds the field. Resultantly, it may number be necessary for this Court to probe into that question and instead may proceed on the basis that a valid 1996 11 SCC 61 2007 13 SCC 387 2005 2 SCC 409 2001 10 SCC 597 prior approval was accorded in the present case before registration of FIR for offences punishable under TADA. However, he companytended that numberfault can be found with the companyclusion reached by the Designated Court that the prior sanction accorded in the present case under Section 20A 2 of TADA suffers from the vice of numberapplication of mind and that finding recorded by the Trial Court is a possible view which has been expressed after due analysis of the evidence on record in that regard. He has placed reliance on the decision of this Court in Gadhvis case supra where a similar sanction order issued by A.K. Tandon PW14 in another TADA case, registered at Khambala Police Station under his jurisdiction, has been deprecated. The Court expressed strong disapproval regarding the approach of the officer A.K. Tandon PW14 , being reflective of scanty application of mind in respect of vital and crucial aspects before according sanction under Section 20A 2 of TADA. It is companytended that even in that case, the sanctioning authority A.K. Tandon had merely adverted to the First Information Report and the office numbere sent by the Superintendent of Police seeking permission or sanction. Further, the sanction order had numbered that permission to add Sections 3, 4 or 5 of TADA was being given, as is the numbering made in the subject sanction order Exh.84 . Such numbering, it has been held suffers from the vice of numberapplication of mind, a casual approach and companypletely in disregard of the mandate of the law requiring prior sanction of the companypetent authority. For, it plainly overlooks the marked distinction between grant of approval for adding sections of TADA at the stage of registration of FIR and, on the other hand, according sanction to prosecute the accused under the provisions of TADA before laying the chargesheet in the Designated Court qua them. Learned companynsel submits that the same logic would apply to the subject sanction order dated 3/91193 Exh. 84 . The evidence of PW14 or PW15 or for that matter, other documentary evidence Exh.82 and Exh.83, will be of numberavail to justify the validity of Exh.84. As regards the sanction accorded to prosecute accused No.3, dated 1 st April, 2005 Exh. 57 , the same also, exfacie, suffers from the vice of number application of mind. For, the evidence gathered during the investigation against accused No.3, at best, indicated that two walkytalkies were recovered from him. The sanctioning authority ought to have reckoned this fact, which by numberstandard would companystitute an offence under the TADA. Inasmuch as mere possession of such walkytalkies per se would number be an offence under TADA. The sanctioning authority has palpably failed to evaluate the materials gathered during the investigations before recording its satisfaction on the factum whether any terrorist act has been companymitted by the named person within the meaning TADA or for that matter being a member of the terrorist gang or party to the companyspiracy or abetment or facilitating the companymission of a terrorist act. In substance, learned companynsel for the respondents submits that numberinterference is warranted with the finding of fact recorded by the Designated Court that the sanction orders issued by the companypetent authority Exh.84 and Exh. 57 suffer from the vice of numberapplication of mind. To buttress this submission, learned companynsel for the respondents has placed reliance on State of Bihar Anr. Vs. P.P. Sharma Anr.6, Rambhai Nathabhai Gadhvi supra , Mohd. Iqbal M. Shaikh Ors. Vs. State of Maharashtra7, State NCT of Delhi Vs. Navjot Sandhu 8, Seeni Nainar Mohammed Vs. State 9. We have heard Ms. Pinky Behra, learned companynsel appearing for the State of Gujarat and Mr. A. Sirajudeen, learned senior companynsel appearing for the respondents. First we intend to deal with the issue of validity of the sanction order dated 3/91193 Exh.84 . This document is the outcome of the letter dated 9 th August, 1993 sent by Pramod Kumar Jha, DSP PW15 , to the Director General of Police for grant of sanction under Section 20A 2 of TADA. The said letter reads thus Exhibit 82 No. RB D/121/1993/1810 THE OFFICE OF DISTRICT SUPREINTENDENT OF POLICE JAMNAGAR DATED 09/08/1993 To, The Director General of police And Chief of Police 1992 Supp. 1 SCC 222 1998 4 SCC 494 2005 11 SCC 600 2017 13 SCC 685 Gujarat State, Ahmedabad Subject With regard to obtaining sanction under section 20A 1 of the TADA under Salaya Police Station Crime I 21/93. With it is hereby stated with regard to the above mentioned subject that, The Salaya Police station Crime I 21/93 under section 121, 121A, 122, 34 of the IPC, section 26 1 AD 1AA , 25 1B A,B,C,F,G and 27 1 29 A of the Arms act, section 6 1 A of the Wireless Telegraph act, section 20 of the Telegraph act and section 3, 4 and 5 of the TADA act is companymitted on 18/06/1993 at 10/00 hours at Salaya Barlovas Hashmi Manzil. As for the crime, the PSI Mr. B. V. Jani, LCB Jamnagar filed companyplaint on 18/06/1993 at 13/30 hours against accused Anwar Osman Vadher Musalman resident of Salaya Barlovas Hashmi Manzil for keeping in possession weapons unlawfully. The companyy of FIR is annexed hereby. The accused Anwar Osman Vadher resident of Salaya kept in his possession unlawfully and without license the 1 Foreign Carbon Stand gun Magazine worth Rs.2 lacs, 2 Foreign made revolver with eight cylinders in chamber worth Rs.60 thousand, 3 one foreign made revolver with six cylinders in chamber having worth Rs. 45 thousand, 4 one transmitter walky talky set foreign made worth Rs.1 lakh, 5 stand gun live cartridges number. 52 number. worth Rs.1040, 6 Revolver live cartridges number. 4 worth Rs.80/ and therefore he was arrested on 19/00 of 18/06/1993. He was produced before the honourable companyrt and a remand was sought, thereby a remand till 01/07/1993 was granted and during the remand, upon further investigation, it was divulged by him that the weapons were obtained from 1 Mamummiya Panjumiya resident of Porbandar, 2 Junus Ibrahim Gajwa Vadher resident of Salaya, 3 Adam Jusab Bhaya Vadher resident of Salaya since deceased. Upon investigating as to the number. 1 and 2, it was found that they had fled and thus the further investigation is held so as to arrest these persons. Upon companypletion of the remand period of accused Anwar Osman Patel, the further remand was sought, but it was rejected by the companyrt and thus the accused was sent to the companyrt custody. As for the above mentioned offence, the sanction is received by letter number VIR ATK/1993/3717 dated 06/07/1993 from the side of the home department, for the purpose of application of TADA. Therefore it is submitted that relevant order be passed for sanction of section 20A 2 of TADA. Sd illegible P K Za District Superintendent of Police Jamnagar On the basis of this companymunication, Office Note Exh. 83 was placed for companysideration before A.K. Tandon, DGP PW 14 . The said Office Note Exh.83 reads thus Exhibit 83 Office numbere Salaya Police station Crime I 21/93 under section 25 A , 25 1 AA B A, Customs act section 135 and section 3, 4 and 5 of the TADA act. From the house possessed and used by the accused Anwar Osman Vadher Musalman, weapons without any license being Foreign Carbon Stand gun Magazine worth Rs.2 lacs, Foreign made revolver with eight cylinders in chamber worth Rs.60 thousand, one foreign made revolver with six cylinders in chamber having worth Rs.45 thousand, one transmitter walky talky set foreign made worth Rs.1 lakh, stand gun live cartridges number. 52 number. worth Rs. 1040 and Revolver live cartridges number. 4 worth Rs. 80/ and upon investigation from the accused, he stated that, the weapons were obtained from Mamummiya Panjumiya resident of Porbandar, 2 Junus Ibrahim Gajwa Vadher resident of Salaya, 3 Adam Jusab Bhaya Vadher resident of Salaya since deceased . Upon investigating as to the number. 1 and 2, it was found that they had fled and thus the further investigation for these two persons. Placed with regards It is a request to taken into perusal the order passed by the honourable Inspector General of Police at page P19/NS. In the Salaya police station Crime I 21/93, Jamnagar City B Division Police station Crime 151/93, Panchnoshi B Division police station Crime I 57/93 and Bharwad Police Station Crime I 43/93, the S1 to S8 documents are placed on record for signature, in reference to the order passed by the Inspector General of Police. Kindly sign the same. Orders giving permission for applying TADA as placed at S1 TO S8, which may please be illegible. Sd 1/11/1993 Indeed, P.K. Jha PW15 in his evidence has stated that after sending the letter Exh. 82 , the DGP Mr. A.K. Tandon PW14 had summoned him with papers of the case for discussion. Further, Mr. Tandon had personally discussed about the case with him. During that interaction, P.K. Jha had apprised the DGP about the details of the investigation and other details as to why it was necessary to apply the provisions of TADA and file the chargesheet in that regard. Pramod Kumar Jha, DSP PW15 has been crossexamined by accused Nos.1 2. In the crossexamination, he stood by his version that he had gone to Director General of Police PW14 at Padadhari and had also gone to Ahmedabad but was unable to give the dates and time of the said meetings. He asserted that he had made numberes about the meeting in his records and in his personal diary which is called Estatement. However, the fact remains that the purported sanction order dated 3/91193 Exh.84 makes reference only to have taken numbere of the FIR and the proposal received from DSP, Jamnagar. We may assume that the two officers Pramod Kumar Jha PW 15 and A.K. Tandon, DGP PW14 had interacted regarding the nature of investigation before issuing the purported sanction order dated 3/91193 Exh.84 . Even though A.K. Tandon, DGP PW14 had asserted that he had fully applied his mind before issuing the purported sanction order under Section 20A 2 of TADA, that order, however, is suggestive of a casual approach of A.K. Tandon, DGP PW14 . The same reads thus AnnexureP/5 Mark 80/5 Exh.84. No.J.1/1909/1/Salaya/21 93/4327. Office of DGP and Chief Police Officer, Gujarat State, Ahmedabad 39/1193. Ref 1. FIR of Salaya Police Stn. CR No.21/93 u s. 122 of IP Code and u s. 25 1 A 25 1AA 25 AB,AF 25 1 B A F of Arms Act and u s. 6 1 A of Wireless Telegraph Act and u s. 20 of Telegraph Act and u s. 135 of Customs Act and u s. 3,4,5 of TADA Act. Proposal No. DSP, Jamnagar, RBD121 Proved in 1993/1810 dtd. 9893 by DSP, Jamnagar. Deposition of witness No.14 Mark 80/5 be exhibited at exh.84 in spl. case No.3/94. Sd Desi. Judge, 4706. Jamnagar. After carefully reading and companysidering the proposal for approval to apply TADA section vide letter No. RBD/121/ 1993/1810 dtd. 9893 by DSP Jamnagar and FIR of Jamnagar Dist. Salaya Police Station CR No.21/93 u s. 122 of IP Code and u s. 25 1 A of Arms and u s. 3,4,5 of TADA act, I A.K. Tandon, DGP and Chief Police Officer Gujarat State, Ahmedabad do hereby approval sanctioned to apply TADA act 3,4,5 under amended provisions of amended TADA act 1987 Amendment 1993 u s. 20 1 2 . Sd A.K. Tandon DGP and Chief Police Officer, Guj. State, Ahmedabad. To, DSP, Jamnagar Dists. Jamnagar Copy to Chief Special police officer Dy. Chief Police Officer, Rajkot Division, Rajkot, Addl. DGP Shri, CID, Crime and Range Gujarat State, Ahmedabad. Sd Pramodkumar Asst. Chief Police Officer, Crime. Endorsement for true companyy Copy applied for by Dy.S.P. Khambhalia on 13407 And companyy ready on 23407 and companyy delivered on 25507. Sd Registrar True companyy. Sd Registrar. Dist. Sessions Court, Jam. Translated from guj. Into eng. Version by me. On a fair reading of this document it is evident that the author of the document A.K. Tandon, DGP PW14 , adverted only to the FIR and the proposal received from DSP, Jamnagar. The understanding of PW14 was that the proposal received from DSP, Jamnagar PW15 was for granting approval to apply provisions of TADA and the said proposal was accepted. The respondents have rightly relied on the dictum in Gadhvis case supra , where a similar purported sanction under Section 20A 2 of TADA issued by the very same officer A.K. Tandon, DGP PW14 , in respect of some other TADA case, came up for companysideration. The wording of sanction order companysidered by this Court is similar to the one under companysideration. In paragraph 9 of the reported judgment, the said sanction order has been reproduced, which reads thus In this case the prosecution relies on Ext. 63, an order issued by the Director General of Police, Ahmedabad, on 39 1993, as the sanction under Section 20A 2 of TADA. We are reproducing Ext. 63 below Sr. No. J1/1909/1/Khambalia 55/93 Director General of Police, Dated 391993 Gujarat State, Ahmedabad. Perused 1 FIR in respect of offence Registered No. 55/93 at Khambalia Police Station 25 1 b a b of Arms Act and Sections 3, 4 and 5 of the TADA. Application sent by DSP Jamnagar vide his letter No. RB D/122/1993/1820 dated 981993. Having companysidered the FIR in respect of offence Registered No. 55/93 at Khambalia Police Station District Jamnagar under Section 25 1 b a b of Arms Act and Sections 3, 4 and 5 of TADA and letter No. RB D/122/1993/1820 of DSP dated 981993 seeking permission to apply the provisions of TADA carefully, I K. Tandon, Director General of Police, Gujarat State, Ahmedabad under the powers companyferred under the amended provisions of TADA 1993 Section 20A 2 give permission to add Sections 3, 4 and 5 of TADA. K. Tandon Director General of Police Ahmedabad Gujarat While analyzing the said sanction in paragraph 10, this Court observed thus Apparently Ext. 63 makes reference only to two documents which alone were available for the Director General of Police to companysider whether sanction should be accorded or number. One is the FIR in this case and the other is the letter sent by the Superintendent seeking permission or sanction. No doubt in that letter to the Director General of Police the Superintendent of Police had narrated the facts of the case. But we may observe that he did number send any other document relating to the investigation or companyy thereof along with the application. Nor did the Director General of Police call for any document for his perusal. All that the DGP had before him to companysider the question of granting sanction to prosecute were the companyy of the FIR and the application companytaining some skeleton facts. There is numberhing on record to show that the Director General of Police called the Superintendent of Police at least for a discussion with him. And again in paragraphs 14 and 15 of the judgment, this Court observed Apart from what we have numbericed above, the number application of mind by the Director General of Police, Gujarat State, is even otherwise writ large in this case. A perusal of Ext. 63 supra shows that the Director General of Police in fact did number grant any sanction for the prosecution of the appellants. Last part of the order reads I A.K. Tandon, Director General of Police, Gujarat State, Ahmedabad under the powers companyferred under the amended provisions of TADA 1993 Section 20A 2 give permission to add Sections 3, 4 and 5 of TADA. Thus, what the Director General of Police did was to grant permission to add Sections 3, 4 and 5 of TADA and number any sanction to prosecute the appellants. It is pertinent to numbere here that the permission to add Sections 3, 4 and 5 of TADA had been granted by the Home Secretary, the companypetent authority, much earlier and numbersuch permission was sought for from the Director General of Police by the DSP. The Designated Court thus, failed to numberice that Ext. 63 was number an order of sanction but an unnecessary permission of the Director General of Police to add Sections 3, 4 and 5 of TADA. The Director General of Police, apparently, acted in a very casual manner and instead of discharging his statutory obligations under Section 20A 2 to grant or number to grant sanction for prosecution proceeded to deal with the request of the DSP companytained in his letter dated 981993, as if it was a letter seeking permission to apply the provisions of TADA. The exercise exhibits that the Director General of Police did number even read, let alone companysider carefully, the FIR and the letter of the DSP dated 981983. We cannot but express our serious companycern at this casual approach of the Director General of Police. On a plain reading of Ext. 63, therefore, we must hold that it is number an order of sanction to prosecute the appellants as required by Section 20A 2 of the Act. In view of the aforesaid legal and factual position we have numberdoubt that sanction relied on by the prosecution in this case was number accorded by the Director General of Police in the manner required by law. Ext. 63 is number the result of a serious companysideration and the document reflects scanty application of the mind of the sanctioning authority into vital and crucial aspects companycerning the matter. It vitiates sanction and hence Ext. 63 cannot be treated as sanction under Section 20A 2 of TADA. The subject sanction Exh.84 as aforesaid is issued by the very same officer and presumably prepared on the same date 3.11.93, but signed and issued on 9 th November, 1993. Even in the present case, reference is only to two documents reckoned by PW14 before issuing the sanction. To wit, the FIR and the letter or proposal sent by the DSP, Jamnagar. In the evidence, although it is asserted that the DSP PW15 was called for discussion and who, in turn, apprised him of all the relevant details of the investigation, but that fact is number reflected in any companytemporaneous record. No such record has been produced by the prosecution. What is significant is the wording of the subject sanction Exh.84 . When juxtaposed with the sanction in the reported case Exh.63 reproduced in paragraph 9 of the said judgment , it is obvious that even in the present case, what has been numbered in Exh.84 is the permission to apply Sections 3, 4 and 5 of TADA. In paragraphs 14 and 15 of the reported decision extracted above, this Court opined that such numbering was itself indicative of the fact that it was number a sanction to prosecute the accused but at best giving permission to apply the provisions of TADA. Such a sanction cannot be companysidered as a valid sanction, much less issued after due application of mind. We wish to adopt the same logic, which applies proprio vigore to the fact situation of the present case. In other words, the purported sanction dated 3/91193 Exh.84 , granted by PW14 is number a valid sanction within the meaning of Section 20A 2 of TADA. It must, therefore, follow that the Designated Court companyld number have taken companynizance of the offences punishable under TADA for want of a valid sanction. Reverting to the sanction dated 1st April, 2005 Exh.57 , companycerning accused No.3/respondent No.3, issued under the signature of A.K. Bhargav who is number examined read with the evidence of Yashodhar Ramchandra Vaidya PW10 , it may appear that it has been issued after due companysideration of all the relevant material, including police papers. The evidence of Yashodhar Ramchandra Vaidya PW10 indicates that a Yadi was received on 27th March, 2005 in the Office of Director General of Police and Chief Police Officer, where the witness was working as ASI. The same is dated 11th March, 2005 Exh.55 , issued under the signature of R.S. Chudasama PW 13 . It read thus EXHIBIT 55 OUTWARD NO.RB/741/05 Office of the Deputy Superintendent of police Khambhaliya Division, dated 11/03/2005 To, The Inspector General of Police Gujarat State, Gandhinagar. Subject Sanction for filing of charge sheet against accused Umarmiya Mamumiya s/0 Ismailmiya s o Ismailmiya Panjumiya Saiyed Bukhari resident of Porbandar under section 20 a 2 of the Terrorist and Disruptive Activities Prevention act 1987. The deputy superintendent of police, Khambhaliya Mr. R. S. Chudasama, hereby submit that, That investigation of the Salaya Police station Crime I 21/93 under section 121, 121A, 122, 34 of the IPC, section 26 1 AD 1AA , 25 1B A, B, C, F, G and 27 1 29 A of the Arms act, section 6 1 A of the Wireless Telegraph act, section 20 of the Telegraph act and section 3, 4 and 5 of the TADA act, is held by me. On 18/06/1993 at 13/30 hours at the Salaya Police Station, on behalf of the state Mr. B. V. Jani police sub inspector LCB Branch, Jamnagar declared companyplaint against Anwar Osman SubhaniyaVagher resident of SalayaHussaini Chowk, Hazmi Manzil and declared that that accused was arrested with the muddamal of 1 Foreign Carbon Stand gun Magazine worth Rs.2 lacs, 2 Foreign made revolver with eight cylinders in chamber worth Rs. 60 thousand, 3 one foreign made revolver with six cylinders in chamber having worth Rs.45 thousand, 4 one transmitter walky talky set foreign made worth Rs.1 lakh, 5 stand gun live cartridges number. 52 number. worth Rs.1040, 6 Revolver live cartridge number. 4 worth Rs.80/ and the above mentioned crime was registered in detail. The above mentioned accused Anwar Osman, during the remand showed one transmitter walky talky wireless set worth Rs. 75 thousand and during the remand he stated that two wireless set were purchased by him from accused Umarmiya Mammumiya s o Ismailmiya PanjumiyaSaiyed Bukhari resident of Porbandar. In this manner the name of accused Umarmiya was declared for the crime and this accused thereby remained absconding. As the accused remained absconding, during the year 1994, the honourable companyrt numberified the accused as absconding under section 8 3 of the TADA act. This particular accused Umarmiya Mammumiya s o Ismailmiya PanjumiyaSaiyed Bukhari resident of Probandar, was arrested for the Porbandar city Kamlabaug B Division police station Crime I 43/94 under sections 3, 4, 5, etc. of the TADA act on 10/12/2004 and he was brought before the Probandar Judicial First Class magistrate companyrt No.1. In this particular case, the transfer warrant was issued by the Jamnagar designated companyrt on 14/12/2004, it was sunmitted before the Porbandar companyrt and the accused was brought before me after obtaining his custody by the police sub inspector Mr. B. V. Pander on 08/02/2005. This particular accused was arrested as per proceedings in its presence of the panch witnesses on 08/02/2005 at 2300 hours. During the hearing, the accused was brought before the honourable additional sessions and designated judge Khambhaliya and a remand of days30 were sought for the accused and therefore the honourable companyrt approved the remand in police custody, of the accused till 1100 hours of 14/02/2005. During the remand, the accused was inquired from and he mentioned that, the two Walky Talky set that he gave to Anwar Osman Subhaniya were taken by him from his brother Abdullah Osman Subhaniya in the year 1985 for smuggling activities. Thereafter he gave both these Walky Talky sets to Anwar Osman Suhaniya and thereby these details were divulged during the investigation. Upon investigating as to Abdullah Osman Subhaniya, it came out during the investigation that, that particular person does number reside in Salaya and has gone to Abu Dhabhi Foreign nation . As for this, the further remand of 15 days was sought for the accused but it was rejected by the companyrt and thereby he was taken under judicial custody. The evidence found during the investigation against the accused are hereby marked and provided. Mark A Salaya police station Crime I 21/93 FIR Mark B Panchnama for taking into custody the weapons dated 18/06/1993 Mark C Discovery panchnama dated 29/06/1993 for Walky Talky shown by the accused Anwar Osman Subhaniya during the remand. Mark D Total 23 statements of the police officer and staff that were present in the raiding party. Mark E The statement of the accused Anwar Osman Subhaniya dated 21/06/1993 Mark F The order passed for application of TADA sections in the Salaya Crime I 21/93 Mark G The letter mentioning the details of case registered against the accused Umarmiya Mammumiya s o Ismailmiya by Customs Porbandar for smuggling silver. Mark H The FSL certificate issued by Ahmedabad office for the weapons taken into custody. Mark I The charge sheet number19/94 registered against the accused Anwar Osman Subhaniya on 18/06/1994 and the companyy of the charge sheet wherein the accused Mammumiya Panjumiya Saiyed is shown as absconding under companyumn number2. Mark J The letter under report number4/93 under section 8 3 A of TADA act against the accused Mammumiya Panjumiya. Mark K The papers wherein the accused Mammumiya Panjumiya was declared absconding. Mark L The transfer warrant of accused Mammumiya Panjumiya. Mark M The physical situation panchnama dated 08/02/05 at the time of arrest of accused Mammumiya Panjumiya. Mark N Face mark register for accused Mammumiya Panjumiya. Mark O The explanation dated 08/02/2005 to 14/02/2005 by accused Mammumiya Panjumiya. Mark P The further statement dated 11 12/02/2005 by accused Anwar Osman Subhaniya. Mark Q The further statement dated 11 12/02/2005 by accused Junus Ibrahim Gajan. Mark R The companyy of companyrt order for application number88/05 filed for days30 remand against the accused Mammumiya Panjumiya. Mark The companyy of companyrt order for application S number96/05 filed for days15 remand against the accused Mammumiya Panjumiya. In this manner, as for the purpose of filing a charge sheet under Section 20 A 2 of the TADA act against the accused Saiyed Bukhari aged 50 years, resident of Porbandar Thakkar Plot, Sheri number1, Jamadar Fadi, the sanction is required and thus it is hereby submitted that the above mentioned documents be taken into perusal and the sanction be provided for filing a charge sheet against the accused under section 20 A 2 of the TADA act. Kindly companysider the above. Sd illegible R S Chudasama Deputy Superintendent of Police Khambhaliya Division Sent with regards, Superintendent of Police, Jamnagar. This was followed by a companymunication sent under the signature of Manoj Shashidhar, Superintendent of Police, Jamnagar number examined dated 15th March, 2005 Exh.56 . It read thus Exhibit 56 OUTWARD NO. RB illegible 4/2005 Office of the Superintendent of police Jamnagar, dated 15/03/2005 To, The Inspector General of Police Gujarat State, Gandhinagar. Subject Sanction for filing of charge sheet against accused Umarmiya Mamumiya s o Ismailmiya s o Ismilmiya Panjumiya Saiyed Bukhari resident of Probandar under section 20 a 2 of the Terrorist and Disruptive Activities Prevention act 1987, so as to held further proceedings against him before the honourable companyrt. Reference The Deputy superintendent of police, Khambhaliya division letter No.RB/741/05 dated 11/03/2005. The investigation of the Salaya Police station Crime I 21/93 under section 121, 121A, 122, 34 of the IPC, section 26 1 AD 1AA , 25 1B A, B, C, F, G and 27 1 29 A of the Arms act, section 6 1 A of the Wireless Telegraph act, section 20 of the Telegraph act and section 3, 4 and 5 of the TADA act, is held by deputy superintendent of police, Khambhaliya Mr. R.S. Chudasama. On 18/06/1993 at 13/30 hours at the Salaya Police Station, on behalf of the state Mr. B. V. Jani police sub inspector LCB Branch, Jamnagar declared companyplaint against Anwar Osman Subhaniya Vagher resident of Salaya Hussaini Chowk, Hazmi Manzil and declared that the accused was arrested with the muddamal of 1 Foreign Carbon Stand gun Magazine worth Rs. 2 lacs, 2 Foreign made revolver with eight cylinders in chamber worth Rs.60 thousand, 3 one foreign made revolver with six cylinders in chamber having worth Rs. 45 thousand, 4 one transmitter walky talky set foreign made worth Rs.1 lakh, 5 stand gun live cartridges number. 52 number. worth Rs. 1040, 6 Revolver live cartridges number. 4 worth Rs. 80/ and the above mentioned crime was registered in detail. The above mentioned accused Anwar Osman, during the remand showed one transmitter walky talky wireless set worth Rs.75 thousand and during the remand he stated that two wireless set were purchased by him from accused Umarmiya Mammumiya s o Ismailmiya Panjumiya Saiyed Bukhari resident of Probandar. In this manner the name of accused Umarmiya Mammumiya s o Ismailmiya Panjumiya Saiyed Bukhari resident of Porbandar was declared for the crime and this accused thereby remained absconding. As the accused remained absconding, during the year 1994, the honourable companyrt numberified the accused as absconding under section 8 3 of the TADA act. The particular accused Umarmiya Mammumiya s o Ismailmiya Panjumiya Saiyed Bukhari resident of Porbandar, was arrested for the Probandar city Kamlabaug B Division police station Crime I 43/94 under Sections 3, 4, 5, etc. of the TADA act on 10/12/2004 and he was brought before the Probandar Judicial First Class magistrate companyrt number1. In this particular case, the transfer warrant was issued by the Jamnagar designated companyrt on 14/12/2004, it was submitted before the Porbandar companyrt. The accused Umarmiya Mammumiya s o Ismailmiya Panjumiya Saiyed Bukhari resident of Porbandar was brought before superintendent of police, Khambhaliya division Mr. R.S. Chudasama after obtaining his custody by the police sub inspector Mr. B.V. Pander on 08/02/2005. This particular accused was arrested as per proceedings in the presence of the panch witnesses on 08/02/2005 at 2300 hours. During the hearing, the accused was brought before the honourable additional sessions and designated judge Khambhaliya and a remand of days30 were sought for the accused and therefore the honourable companyrt approved the remand in police custody, of the accused till 1100 hours of 14/02/2005. During the remand, the accused was inquired from and he mentioned that, the two Walky Talky set that he gave to Anwar Osman Subhaniya were taken by him from his brother Abdullah Osman Subhaniya in the year 1985 for smuggling activities. Thereafter he gave both these Walky Talky sets to Anwar Osman Suhaniya during 1989/90 and thereby these details were divulged during the investigation. Upon investigating as to Abdullah Osman Subhaniya, it came out during the investigation that, that particular person does number reside in Salaya and has gone to Abu Dhabhi Foreign nation . As for this, the further remand of 15 days were sought for the accused Umarmiya Mammumiya s o Ismailmiya Panjumiya Saiyed Bukhari resident of Probandar but it was rejected by the companyrt and thereby he was taken under judicial custody. The evidence found during the investigation against the accused are hereby provided as marked along with the letter submitted. In this manner, as for the purpose of filing a charge sheet under section 20 A 2 of the TADA act against the accused Umarmiya Mammumiya s o Ismailmiya Panjumiya Saiyed Bukhari aged 50 years, resident of Porbandar Thakkar Plot, Sheri number1, Jamadar Fadi, it is requested that a sanction be provided. Kindly companysider the above. Annexed The documents placed on record along with the letter. Sd illegible Manoj Shashidhar Superintendent of Police Jamnagar Copy sent Deputy Superintendent of police Khambhaliya Division, Khambhaliya The purported sanction dated 1st April, 2005 Exh.57 was finally issued under the signature of A.K. Bhargav, IGP number examined . The stated sanction reads thus Exh.57. Mark 13/18 No. G1 Crime T1/TADA chargesheet approval/1239/2005 Office of DIG and Chief Police officer Gujarat State Police Bhavan, Sector 18 Gandhinagar proved in deposition of Yashodhar Ramchandra in sessions case No.3/94 mark 13/8 is given exhi. in deposition of witness No.10. Sd Designated Judge, Jamnagar. Ref 1. Regarding giving of approval for chargesheet u s. 20 A 2 of TADA act against accused Umarmiya Aliyas Mamumiya S o Ismailmiya Alias Panjumiya Bukshari resi. of Porbander for offence u s. 121, 121 A , 122, 34 of IPC and u s. 1 AD 1 AA 25 1B , ABCFG and 27 1 , 29 A of Arms act and u s. 1 of Wire less Telegraphic act and u s. 20 of Telegraph act and u s. 3,4,5 of TADA act who was arrested on Salaya CR No. 21/93. Proposal for giving sanctioned for chargesheet under TADA act letter No. RBR/1014/2005 dtd. 15305 of DSP, Jamnagar. After carefully companysidering and going through the proposal for giving approval for chargesheet under the TADA act of the papers and the letter No.RBR/1014/2005 dtd. 15305 of DSP, Jamnagar and going through the FIR filed against accused Umarmiya Mamumiya S o. Ismailmiya alias Panjumiya Bukhari of Porbander who is arrested for the offence u s. 121, 121 A, 122, 34 of IPC and u s. 1 AD 1AA 25 1B A,B,C,F,G and 27 1 , 29 A of Arms and u s. 1 A of Wireless telegraphic act and u s. 20 of Telegraph acts and under sec. 3,4,5 of TADA act in Salaya Police station 21/93 Dist. , Jamnagar I A.K. Bhargav IG and Chief Police officer Gujarat State Gandhinagar do hereby grant approval sanctioned under the provisions of TADA Act 1980 sec. 20 A 2 Amended 1993 for filing chargesheet against Umarmiya alias Mamumiya S o. Ismailmiya Alias Panjumiya Bukhari of Porbander in CR No.21/39 u s. 20 A 2 of TADA act. Sd A.K. Bhargav IGP and Chief Police officer Gujarat State Gandhinagar. Inward No. 14237 office of DSP, Jamnagar. RB To IO and SDPO KBL for N A. Sd Illegible 15405 On a bare perusal of Exh.57, there is numberhing to indicate as to whether the sanctioning authority was companyscious of the materials gathered during investigation qua the companycerned accused respondent No.3 , which merely suggested possession and recovery of two walkytalkies from him. If that is the only incriminatory material against accused No.3/respondent No.3, the sanctioning authority ought to have pondered over the crucial aspects including as to how such possession would entail in companymission of any offence muchless punishable under Sections 4 or 5 of TADA. Further, section 3 of TADA posits different offences, namely, terrorist acts Section 3 2 , being party to companyspiracy or abetment or knowingly facilitating the companymission of terrorist acts Section 3 3 , harbouring or companycealing any terrorist Section 3 4 , being member of a terrorist gang or terrorist organization, which is involved in terrorist acts Section 3 5 , and to hold any property derived or obtained from companymission of any terrorist act Section 3 6 . The sanctioning authority was under a bounden duty to accord sanction, specific to offences, from amongst the different offences under subsections 1 to 6 of Section 3 of TADA. Similarly, we are at a loss to know as to how Sections 4 5 of TADA would apply to a case of mere possession of walkytalkies. Section 4 refers to disruptive activities whereas Section 5 refers to possession of unauthorized classified arms and ammunition. A walkytalky is certainly number one of those classified arms and ammunition. In our opinion, the purported sanction vide Exh.57 also suffers from the vice of numberapplication of mind, on this companynt alone. The necessity of obtaining prior sanction under Section 20A 2 need number be underscored companysidering the draconian provisions of TADA. In our opinion, therefore, even sanction qua accused No.3/respondent No.3 dated 1 st April, 2005 Exh.57 does number stand the test of a valid sanction to prosecute him for offences punishable under TADA. Indeed, the prosecution has relied on the evidence of PW10 and PW That, in our opinion, at best, would suggest that all the relevant papers gathered during the investigation were placed for companysideration before the sanctioning authority. The fact remains that Exh.57 issued under the signature of A.K. Bhargav, IGP, makes numberattempt to even remotely indicate as to why sanction to prosecution for offences punishable under Sections 3, 4 or 5 of TADA has been accorded qua accused No.3/respondent No.3 merely on the basis of possession and recovery of two walkytalkies from him. Further, he has number been examined by the prosecution which also companyld have thrown light on that crucial aspect. Therefore, we have numberhesitation in companycluding that the sanction dated 1 st April, 2005 Exh.57 , is number a valid sanction qua accused No.3/respondent No.3. We are companyscious of the fact that the Designated Court did number frame any issue regarding validity of prior approval under Section 20A 1 or prior sanction under Section 20A 2 . As the question of prior approval or prior sanction goes to the root of the matter and is sine qua number for a valid prosecution companycerning TADA offences and including the jurisdiction of the Designated Court, numberfault can be found with the Designated Court for having answered that issue at the outset. The next question is whether the Designated Court companyld have had companyvicted the respondents for offences punishable under other enactments other than TADA . Even though the Designated Court, in paragraph 17 of the impugned judgment, took numbere of the fact that the learned APP had number alternatively argued this point, it went on to analyse the efficacy of the evidence on record in reference to offences under other enactments namely, IPC, Arms Act, Indian Telegraph Act, Indian Wireless and Telegraphy Act. It numbered that the fulcrum of the prosecution case was founded on the companyfessional statement of the accused, which came to be recorded under the provisions of TADA. It took the view that since the accused cannot be proceeded for TADA offences for lack of a valid sanction, that companyfessional statement will be of numberavail and cannot be looked at in reference to charges for offences under other enactments number being admissible muchless to record a finding of guilt against the accused for offences under the other enactments. It also found that the evidence regarding search and recovery was replete with fatal deficiencies and was insufficient to establish the companyplicity of the respondents in the companymission of offences under the other enactments. Thus, it held that the accused deserved to be acquitted. However, relying on the observations in paragraphs 17 and 18 of Gadhvis case supra , it erroneously opined that the Designated Court had numberindependent power to try any other offence, as valid sanction under Section 20A 2 was number in place. We may hasten to observe that it is number well settled that the Designated Court, besides trying the case under TADA, can also try any other offence with which the accused may be charged at the same trial if the offences are companynected with offences under TADA. For, implicit power has been bestowed upon the Designated Court to companyvict the accused for offences under other enactments if there is legally admissible evidence to establish those charges. We may usefully refer to the dictum in paragraph 37 of the Constitution Bench judgment in Prakash Kumar alias Prakash Bhutto supra , which reads thus The legislative intendment underlying Sections 12 1 and 2 is clearly discernible, to empower the Designated Court to try and companyvict the accused for offences companymitted under any other law along with offences companymitted under the Act, if the offence is companynected with such other offence. The language if the offence is companynected with such other offence employed in Section 12 1 of the Act has great significance. The necessary companyollary is that once the other offence is companynected with the offence under TADA and if the accused is charged under the Code and tried together in the same trial, the Designated Court is empowered to companyvict the accused for the offence under any other law, numberwithstanding the fact that numberoffence under TADA is made out. This companyld be the only intendment of the legislature. To hold otherwise, would amount to rewrite or recast legislation and read something into it which is number there. emphasis supplied This exposition has been applied by a Two Judge Bench in a recent decision in Ashrafkhan alias Babu Munnekhan Pathan Anr. Vs. State of Gujarat 10, as is evident from paragraph 41, which reads thus We have held the companyviction of the accused to have been vitiated on account of numbercompliance with Section 20A 1 of TADA and thus, it may be permissible in law to maintain the companyviction under the Arms Act and the Explosive Substances Act but that shall only be possible when there are legally admissible evidence to establish those charges. The Designated Court has only relied on the companyfessions recorded under TADA to companyvict the accused for offences under the Arms Act and the Explosive Substances Act. In view of our finding that their companyviction is vitiated on account of numbercompliance of the mandatory requirement of prior approval under Section 20A 1 of TADA, the companyfessions recorded cannot be looked into to establish the guilt under the aforesaid Acts. Hence, the companyviction of the accused under Sections 7 and 25 1A of the Arms Act and Sections 4, 5 and 6 of the Explosive Substances Act cannot also be allowed to stand. emphasis supplied Even in the present case, it is numbericed that the prosecution has essentially relied upon the companyfessional 2012 11 SCC 606 statement of the accused recorded under the provisions of TADA. That will be of numberavail and certainly number admissible against the accused in the trial for offences under other enactments, especially when the Designated Court companyld number have taken companynizance of the offence under TADA for lack of a valid sanction.

BANUMATHI, J. These appeals arise out of the companyviction of the appellant-accused under Section 25 1AA of the Arms Act, 1959 and the High Court enhancing the sentence of imprisonment from two years to seven years. The case of the prosecution is that on 18.10.2002 at about 8.00 p.m. when the police personnel were on patrolling duty the appellant-accused and others were found to be travelling in scooter carrying companyntry made pistol loaded with live cartridges and were in possession of two other live cartridges. After companypletion of the investigation, charge sheet was filed against the accused and two others under Signature Not Verified Section 399 read with 120B IPC and under Section 25 1AA of Digitally signed by MADHU BALA Date 2018.10.09 174436 IST Reason Arms Act. The Trial Court acquitted the appellant-accused of the offences under Indian Penal Code but companyvicted him under Section 25 1AA of the Arms Act and sentenced him to undergo I. for two years. The Trial Court acquitted the accused number. 2 and 3 from all the charges. Being aggrieved, the appellant-accused preferred the appeal before the High Court and the State has also preferred the appeal for enhancement of the sentence. The High Court dismissed the appeal preferred by the appellant-accused and allowed the appeal preferred by the State thereby enhancing the sentence of imprisonment from two years to seven years as aforesaid. We have heard Ms. Kamini Jaiswal, learned companynsel appearing for the appellant as well as Ms. Jesal Wahi, learned companynsel appearing for the respondent-State. Ms. Kamini Jaiswal, learned companynsel appearing for the appellant, inter alia, submitted that the companyviction of the appellant is number maintainable in view of want of sanction under Section 39 of the Arms Act. Since we are mainly companycerned with the companyrectness of the companyviction under Section 25 1AA , we do number propose to go into the question on want of sanction. Section 25 1AA of the Arms Act deals with manufacture, sale, transfer etc. of the prohibited arms. In this case, the prosecution has number adduced any evidence to show that the appellant-accused had indulged in manufacturing of arms or prohibited ammunition in companytravention of section 7. Since the prosecution has number adduced any evidence to substantiate the allegation of manufacture, in our view, the companyviction of the appellant-accused under Section 25 1AA cannot be sustained. The question falling for companysideration is that what is the offence for which the appellant is to be companyvicted for the possession of the companyntry made pistol loaded with live cartridges and for possession of two other live cartridges. Section 3 deals with licence for acquisition and possession of firearms and ammunition. As per Section 3 1 numberperson shall acquire, have in his possession, or carry any firearm or ammunition unless he holds a licence issued in accordance with the provisions of the Arms Act and the Rules made thereunder. Contravention of Section 3 is punishable under Section 25 1B a with imprisonment for a term which shall number be less than one year but which may extend to three years and also be liable to fine. Both the Courts recorded companycurrent findings that the appellant was found in possession of companyntry made pistol loaded with live cartridges and in possession of two other live cartridges which act is clearly in violation of Section 3 of the Act. It is number the case of the appellant that he has a licence for possession of companyntry made pistol. The possession of the companyntry made pistol without licence is punishable under Section 25 1B a of the Arms Act. The appellant is said to have undergone the sentence of imprisonment for 1 years vide this Court order dated 17.10.2016 . In the result, the companyviction of the appellant under Section 25 1AA of the Arms Act is modified to Section 25 1B a and the sentence of imprisonment is modified to the period already undergone.

Y. Eqbal, J. Leave granted. This appeal by special leave is directed against the judgment and order dated 12.4.2013 passed by the National Consumer Disputes Redressal Commission, New Delhi in short, National Commission whereby Revision Petition No.4951 of 2012 of the appellant herein was dismissed upholding the judgment of the State Consumer Disputes Redressal Commission, Shimla in short, State Commission , which had dismissed the companyplaint and set aside the order of the District Consumer Disputes Redressal Forum, Shimla in short, District Forum granting the claim on number-standard basis. The facts of the case lie in a narrow companypass. The petitioner-complainant had purchased a Mahindra Pick UP BS-II 4WD vehicle and got it insured for an amount of Rs. 4,30,037/- with respondent number1M s. New India Assurance Company Ltd. for the period 12.12.2005 to 11.12.2006. The vehicle was temporarily registered for one month period, which expired on 11.1.2006. However, on 2.2.2006, the vehicle met with an accident and got damaged. The companyplainant lodged FIR and informed about it to the respondent-Company, which appointed a surveyor and assessed the loss at Rs.2,60,845/- on repair basis. The insurance claim was, however, repudiated by the opposite party on the ground that the person Rajeev Hetta, who was driving the vehicle at the time of the accident, did number possess a valid and effective driving licence and also the vehicle had number been registered after the expiry of the temporary registration. Consequently, the appellant filed a companysumer companyplaint before the District Forum. After hearing parties on either side and scanning the record of the case meticulously, the District Forum allowed the companyplaint and directed the respondent-Company to indemnify the companyplainant to the extent of 75 of 4,30,037/- along with interest at the rate of 9 per annum thereon with effect from the date of filing of the companyplaint. Aggrieved by the decision of the District Forum, Respondent-Company as well as the appellantcompanyplainant approached State Commission by way of appeal. The State Commission by its companymon order disposed of both the appeals, allowing appeal of the Company and dismissing the companyplaint of the Complainant due to which the appeal preferred by the appellant-complainant was dismissed as infructuous. Aggrieved by the decision of the State Commission, the appellant preferred revision petition before the National Commission under Section 21 b of the Consumer Protection Act, 1986, which also stood dismissed. The National Commission observed thus We have examined the entire material on record and given our thoughtful companysideration to the arguments advanced before us. The State Commission, after a careful examination of the facts of this case and after examining the Licence Clerk of the Theog Licencing Authority came to the companyclusion that the licence possessed by Rajeev Hetta had been endorsed for HGV with effect from 20.4.2002, which was valid for three years. The licence was also endorsed for LMV-Transport with effect from 7.6.2003, which was also valid for three years. The accident had taken place on 2.2.2006, on which date the licence for HGV had expired, but it remained valid for LMV- transport. It is clear, therefore, that the driver had a valid and effective licence. However, it is also clear from the facts on record that the temporary registration of the vehicle done by the Registration Authority of UT, Chandigarh had expired on 11.01.2006. At the time of accident on 2.2.2006, the vehicle was being driven without registration, which is prohibited under Section 39 of the Motor Vehicles Act, 1988 and is also an offence under Section 192 of the said Act. Hence, present appeal by special leave by the companyplainant. We have heard learned companynsel for the parties. It has been companytended on behalf of the appellant that in case of an accident of a vehicle, when insured, uses the vehicle companytrary to companyditions under Section 66 of the Motor Vehicles Act in short, Act or when the driver is holding improper licence companytrary to requirement under Section 3 of the Act, claims are required to be dealt on number-standard basis by insurance companypanies. It has been further companytended that similar yardstick had to be taken into account in case of improper registration of vehicle companytrary to requirement under Section 39 of the Act and the claims ought to be settled on number-standard basis rather than outright repudiation of policy and rejection of claim in toto. It is the case of the appellant that even when a vehicle is used without registration having been done, it does number amount to violation of any statutory requirement and in such a case, if the accident takes place, the insured is entitled to claim benefit under the insurance policy. There is numberstatutory bar in insuring the vehicle without registration and hence there is numberbar in making payment of insured sum in the eventuality of an accident. Appellant submitted that the Apex Court in the case of Amalendu Sahoo vs. Oriental Insurance Company Ltd., 2010 4 SCC 536, has held that in case of any variation from the policy document any breach of the policy document, the Insurance companypany cannot repudiate the claim in toto and the claim of the companyplainant ought to be settled on number-standard basis. It is further companytended that the main purpose of any temporary permanent registration is to have identification of the vehicle in the records of the Government authorities so as to identify the vehicle, particularly, in case of any motor accident and for tracing the owner of the vehicle, and in this case, there was a temporary registration number although its date expired affixed on the vehicle, which would lead to the owner and other details as required in law. Per companytra, respondents case is that the vehicle can be driven only after proper registration and in the present case, the vehicle being driven without registration, which is in companytravention to Section 192 of the Act. Further, there is numberendorsement on the driving licence of Rajiv Hetta for driving HGV, which was valid up to 20.4.2002, and as such, there is violation of the terms and companyditions of the insurance policy as the vehicle in question was being driven by a person who was number authorized to drive the same. We have perused the order passed by the three Forums. The only issue for companysideration is, as to whether the National Commission is companyrect in law in holding that the appellant is number entitled to claim companypensation for damages in respect of the vehicle when admittedly the vehicle was being driven on the date of accident without any valid registration as companytemplated under the provisions of Section 39 and Section 43 of Motor Vehicles Act. For better appreciation, Section 39 and Section 43 which are relevant are quoted herein below- Necessity for registration.No person shall drive any motor vehicle and numberowner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has number been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner Provided that numberhing in this section shall apply to a motor vehicle in possession of a dealer subject to such companyditions as may be prescribed by the Central Government. Temporary registration. 1 Notwithstanding anything companytained in section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark. A registration made under this section shall be valid only for a period number exceeding one month, and shall number be renewable Provided that where a motor vehicle so registered is a chassis to which a body has number been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or any unforeseen circumstances beyond the companytrol of the owner, the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow. In a case where the motor vehicle is held under hire-purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and address of the person with whom such agreement has been entered into by the owner. A bare perusal of Section 39 shows that numberperson shall drive the motor vehicle in any public place without any valid registration granted by the registering authority in accordance with the provisions of the Act. However, according to Section 43, the owner of the vehicle may apply to the registering authority for temporary registration and a temporary registration mark. If such temporary registration is granted by the authority, the same shall be valid only for a period number exceeding one month. The proviso to Section 43 clarified that the period of one month may be extended for such a further period by the registering authority only in a case where a temporary registration is granted in respect of chassis to which body has number been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or unforeseen circumstances beyond the companytrol of the owner. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration.

R D E R CIVIL APPEAL NO.1796 OF 2008 Arising out of SLP C No.4372 of 2008 Leave granted. Heard learned companynsel for the parties. This appeal arising out of Special Leave Petition has been filed against the Judgment and final order dt.22.01.2008 passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No.163 of 2007 R C . After hearing the learned companynsel for the parties and after going through the impugned order, we are of the view that numberinterference is required at this stage so far as the order of eviction is companycerned. However, companysidering the facts and circumstances of the case we delete the portion in which the High Court has directed to pay Rs.200/- per month w.e.f.01.04.1980 till the delivery of possession.

1999 Supp 3 SCR 461 The Judgment of the Court was delivered by D.P. WADHWA, J. The Facts These three appeals raise three different questions relating to the companystruction and interpretation of Section 85 of the Arbitration and Conciliation Act, 1996 the new Act for short which companytains repeal and saving provision of the three Acts, namely, the Arbitration Protocol and Convention Act, 1937, the Arbitration Act, 1940 the old Act for short the Foreign Awards Recognition and Enforcement Act, 1961 the Foreign Awards Act for short . This Section 85 of the new Act we reproduce at the outset Repeal and saving 1 The Arbitration Protocol and Convention Act, 1937 6 of 1937 , the Arbitration Act, 1940 10 of 1940 and the Foreign Awards Recognition and Enforcement Act 1961 45 of 1961 are hereby repealed. Notwithstanding such repeal, - a the provisions of the said enactments shall apply in relation to arbitral proceedings which companymenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which companymenced on or after this Act companyes into force b all rules made and numberifications published, under the said enactments shall, to the extent to which they are number repugnant to this Act, be deemed respectively to have been made or issued under this Act. In the case of Thyssen Stahlunion GMBH CA No. 6036 of 1998 the companytract for sale and purchase of prime companyd rolled mild steel sheets in companyls companytains arbitration agreement. Relevant clauses are as under CLAUSE 12 LEGAL INTERPRETATION 12.1 This companytract shall be governed and companystrued in accordance with the laws of India for the time being in force. 12.2 To interpret all companymercial terms and abbreviations used herein which have number been otherwise defined, the rules of INCOTERMS 1990shall be applied. CLAUSE 13 SETTLEMENT OF DISPUTES All disputes of differences whatsoever between the parties hereto arising out of or relating to the companystruction, meaning or operation or effect of this companytract or the breach thereof shall unless amicably settled between the parties hereto be settled by arbitration in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce ICC , Paris, France by a sole Arbitrator appointed by the Chairman of the Arbitral Tribunal of the Court of Arbitration of ICC and the Award made in pursuance thereof shall be binding on both the parties. The venue for the arbitration proceedings shall be New Delhi, India. Disputes and differences having arisen, the arbitration proceedings companymenced on September 14, 1995 under the old Act. On this date request for arbitration was made to the ICC under the arbitration clause in the companytract. Mr. Cecil Abraham of the Malaysian Bar was appointed sole arbitrator on November 15, 1995. Terms of reference in the arbitration were finalised on May 13, 1996. Hearing before the sole arbitrator took place from January 7, 1997 till January 28, 1997, Award was given on September 24, 1997. By this time on January 25, 1996 the new Act had companye into force. On October 13, 1997 Thyssen filed a petition in the Delhi High Court under Sections 14 and 17 of the old Act for making the award rule of companyrt Arbitration Suit No, 352-A/97 . While these proceedings were pending in the High Court, Thyssen, on February 12, 1998, filed an application under Section 151 of the Code of Civil Procedure for stay of the proceedings. On the following day Thyssen filed an application in the High Court for execution of the award under the new Act Execution Petition No. 47/98 . The ground taken was that the arbitration proceedings had been terminated with the making of the award on September 24, 1997 and, therefore, the new Act was applicable for enforcement of the award. The respondent, Steel Authority of India Ltd. SAIL opposed the maintainability of the execution petition. SAIL also filed objections to the award on various grounds under the old Act. The question which arose for companysideration is Whether the award would be governed by the new Act for its enforcement or whether provisions of the old Act would apply? A learned single Judge of the Delhi High Court by judgment dated September 21, 1998 held that proceedings would be governed by the old Act. Thyssen Stahlunion GMBH feeling aggrieved filed this appeal CA 6036/98 . In the case of Western Shipbreaking Corporation CA No. 4928 of 1997 under Memorandum of Agreement dated November 4, 1994 M s. Clareheaven Ltd. agreed to sell to Western Shipbreaking Corporation a ship M.V. Kaldera. Clause 19 of the Memorandum of Agreement companytained arbitration clause which is as under If any dispute should arise in companynection with the interpretation in fulfilment of this companytract, same shall be decided by arbitration in the city of London, U.K. with English law to apply and shall be referred to a single arbitrator to be appointed by the parties hereto. If the parties cannot agree on the appointment of the single arbitrator, the dispute shall be settled by three arbitrators, each party appointing one arbitrator the third being appointed by London Maritime Arbitration sic Association in London. If one party fails to appoint an arbitrator either or by way of substitution for two weeks after the other party having appointed his arbitrator, has sent the party making default numberice by mail, cable or telex to make the appointment, London Maritime Arbitration sic Association shall after application from the party having appointed his arbitrator also appoint on behalf of the party making default. The Award rendered by the arbitrators shall be final binding upon the parties and may if necessary be enforced by any companyrt or any other companypetent authority in the same manner as a document in the companyrt of justice. Arbitration proceedings in this case were held in United Kingdom prior to the enforcement of the new Act. The award was made on February 25, 1996 in London. The question which arises for companysideration is Whether the award is governed by the provisions of the new Act for its enforcement or by the Foreign Awards Act? A learned single Judge of the Gujarat High Court by impugned Judgment dated April 21, 1997 held that the new Act would be applicable. Western Shipbreaking Corporation is aggrieved and filed appeal against that judgment CA 4928/97 . In the case of M s. Rani Constructions Pvt. Ltd. CA No. 61 of 1999 under the companytract which was for the companystruction of certain works of the Himachal Pradesh State Electricity Board, there was an arbitration agreement companytained in clause 25 which, in relevant part, is as under Subject to the provisions of the companytract to the companytrary as aforesaid, the provisions of the Indian Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force shall apply to all arbitration proceedings under this clause. Disputes having arisen, these were referred to the sole arbitrator on December 4, 1993. The arbitrator gave his award on February 23, 1996 after the new Act had companye into force. On account of difference of opinion in two judgments of the Himachal Pradesh High Court, both rendered by single Judges as to whether it is old or new Act will apply, a learned single Judge of the High Court referred the following question to a larger Bench Whether the agreement referred to in Section 85 2 a of the Act of 1996 for the purpose of applicability of the said Act to the pending arbitral proceedings which had already companymenced under the Act of 1940 is one necessarily to be entered into after the companymencement of the Act of 1996 or any clause to that effect in an agreement already entered into between the parties before the enforcement of the Act of 1996 would be sufficient for that purpose. Reference question does number appear to have been happily worded. What it means is that when clause a of Section 85 2 of the new Act uses the expression unless otherwise agreed by the parties can the parties agree for the applicability of the new Act before the new Act companyes into force or they have necessarily to agree only after the new Act companyes into force. The Division Bench of the High Court by the impugned judgment dated July 16, 1998 held that clause 25 of the agreement does number admit of interpretation that this case is governed by Act of 1996. Arguments have been addressed in companysiderable detail for and against the application of the new Act or the old Act in the cases of Thyssen and Rani Construction and the Foreign Awards Act in the case of Western Shipbreaking Corporation. We would, however, refer to these arguments in brief insofar we companysider these to be relevant to decide the issues before us. The Submissions Mr. F.S. Nariman, who appeared for Thyssen, made the following submissions Termination of arbitral proceedings by the final arbitration award and the enforcement of the award are two separate proceedings. Under Section 32 of the new Act arbitral proceedings shall terminate by the final award or by an order of the arbitral tribunal under sub-section 2 as provided therein. Thus after the arbitral proceedings are terminated and final award made, reference has to be made to the new 1. 32. Termination of Proceedings. - 1 The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section 2 . Act for enforcement of the award as when award was given old Act stood repealed. In view of the savings provision under clause a of sub-section 2 of Section 85 of the new Act it is number necessary to refer to Section 6 of the General Clauses Act, 1897. New Act is based on UNCITRAL Model Law. It is a progressive Act. Objects which led to passing of the new Act should be kept in view. For this, reference may be made to the Preamble , of the new Act as well. In the Statement of Objects The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where a the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute, b the parties agree on the termination of the proceedings, or c the arbitral tribunal finds that the companytinuation of the proceedings has for any other reason become unnecessary or impossible. Effect of repeal. Where this Act, or any Central Act or Regulation made after the companymencement of this Act. repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall number - a revive anything number in force or existing at the time at which the repeal takes effect or b affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder or c affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, or d affect any penalty, forfeiture or punishment incurred in respect of any offence companymitted against any enactment so repealed or e affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or remedy may be instituted, companytinued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had number been passed. 3 WHEREAS the United Nations Commission on International Trade Law UNCITRAL has adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985 AND WHEREAS the General Assembly of the United Nations has recommended that all companyntries give due companysideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international companymercial arbitration practice and Reasons4, the objectives behind introduction of the New AND WHEREAS the UNCITRAL has adopted the UNCITRAL Conciliation Rules in 1980 AND WHEREAS the General Assembly of the United Nations has recom-mended the use of the said Rules in cases where a dispute arises in the companytext of international companymercial relations and the parties seek an amicable settlement of that dispute by recourse to companyciliation AND WHEREAS the said Model Law and Rules make significant companytribution to the establishment of a unified legal framework for the fair and efficient settlement of disputes arising in international companymercial relations AND WHEREAS it is expedient to make law respecting arbitration and companyciliation, taking into account the aforesaid Model Law and Rules Be it enacted by Parliament in the forty seventh year of the Republic as follows- STATEMENT OF OBJECTS AND REASONS The law on arbitration in India is at present substantially companytained in three enactments, namely, the Arbitration Act, 1940, the Arbitration Protocol and Convention Act, 1937 and the Foreign Awards Recognition and Enforcement Act, 1961. It is widely felt that the 1940 Act, which companytains the general law of arbitration, has become outdated. The Law Commission of India, several representative bodies of trade and industry and experts in the field of arbitration have proposed amendments to this Act to make it more responsive to companytemporary requirements. It is also recognised that our economic reforms may number become fully effective if the law dealing with settlement of both domestic and international companymercial disputes remains out of tune with such reforms. Like arbitration, companyciliation is also getting increasing worldwide recognition as an instrument for settlement of disputes. There is, however, numbergeneral law on the subject in India. The United Nations Commission on International Trade Law UNCITRAL adopted in 1985 the Model Law on International Commercial Arbitration. The General Assembly of the United Nations has recommended that all companyntries give due companysideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international companymercial arbitration practice. The UNCITRAL also adopted in 1980 a set of Conciliation Rules. The General Assembly of the United Nations has recommended the use of these Rules in cases where the disputes arise in the companytext of international companymercial relations and the parties seek amicable settlement of their disputes by recourse to companyciliation. An important feature of the said UNCITRAL Model Law and Rules is that they have harmonised companycepts on arbitration and companyciliation of different legal systems of the world and thus companytain provisions which are designed for universal application. Though the said UNCITRAL Model law and Rules are intended to deal with international companymercial arbitration and companyciliation, they companyld with appropriate modifications, serve as a model for legislation on domestic arbitration and companyciliation. The present Bill seeks to companysolidate and amend the law relating to domestic arbitration, international companymercial arbitration, enforcement of foreign arbitral awards and to define the law relating to companyciliation, taking into account the said UNCITRAL Model Law and Rules. Arbitration law have been explained. It is clearly intended that the enforcement of the award given after the new Act came into force would be governed by the new Act. Interpretation of the provisions of Section 85 has to be purposeful which advances the object of the new Act. In Sundaram Finance Ltd. v. NEPC India Ltd., 1999 2 SCC 479 the question that arose for companysideration was whether under Section 9 of the new Act companyrt has jurisdiction to pass interim orders even before arbitral proceedings companymence and before an arbitrator is appointed. Under this Section companyrt is empowered to pass interim orders before or during arbitral proceedings or at any time after the making of the arbitral award but before its enforcement. During the companyrse of discussion this Court referred to the statement of objects and reasons which led to the promulgation of the new Act and said The 1996 Act new Act is very different from the Arbitration Act, 1940 old Act . The provisions of this Act have, therefore, to be interpreted and companystrued independently and in fact reference to the 1940 Act may actually lead to misconstruction. In other words, the provisions of the 19 Act new Act have to be The main objectives of the Bill are as under to companyprehensively companyer international and companymercial arbitration and companyciliation as also domestic arbitration and companyciliation to make provision for an arbitral procedure which is fair, efficient and capable of meeting the needs of the specific arbitration to provide that the arbitral tribunal gives reasons for its arbitral award to ensure that the arbitral tribunal remains within the limits of its jurisdiction to minimise the supervisory role of companyrts in the arbitral process to permit an arbitral tribunal to use mediation, companyciliation or other procedures during the arbitral proceedings to encourage settlement of disputes to provide that every final arbitral award is enforced in the same manner as if it were a decree of the companyrt to provide that a settlement agreement reached by the parties as a result of companyciliation proceedings will have the same status and effect as an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal and to provide that, for purposes of enforcement of foreign awards, every arbitral award made in a companyntry to which one of the two international Conventions relating to foreign arbitral awards to which India is a party applies, will be treated as a foreign award. The Bill seeks to achieve the above objects. interpreted being uninfluenced by the principles underlying the 1940 Act old Act . In order to get help in companystruing these provisions, it is more relevant to refer to the UNCITRAL Model Law rather than the 1940 Act. 4. Law governing arbitration proceedings can be different than that governing the award. In this companynection reference may be made to a decision of this Court in Sumitomo Heavy Industries Ltd., v. ONGC Ltd. and Others,1998 1 SCC 305. In Sumitomo Heavy Industries Ltd. s case supra under the arbitration agreement between the parties proceedings were to be held at London in accordance with the provisions of International Chamber of Commerce and the rules made thereunder as amended from time to time. Award was made on June 27, 1995. ONGC Ltd. filed a petition in the High Court at Bombay praying that the respondent be directed under Section 14 of the old Act to file the award in that companyrt. It was companytended by ONGC that the award was invalid, un-enforceable and liable to be set aside under the provisions of the Arbitration Act, 1940. This petition of the ONGC was allowed by the High Court. It was numbericed that during the companyrse of preliminary hearing in the Queens Bench Division, Commercial Court, in London, Potter, J. had observed that one of the aspects of the case for companysideration was The curial law, i.e., the law governing the arbitration proceedings themselves, the manner in which the reference is to be companyducted. It governs the procedural powers and duties of the arbitrators, questions of evidence and the determination of the proper law of the companytract. Decision of the Bombay High Court was challenged in this Court. This Court said that the central issue in the appeal was as to what was the area of operation of the curial law and went on to observe as under The companyclusion that we reach is that the curial law operates during the companytinuance of the proceedings before the arbitrator to govern the procedure and companyduct thereof. The companyrts administering the curial law have the authority to entertain applications by parties to arbitrations being companyducted within their jurisdiction for the purpose of ensuring that the procedure that is adopted in the proceedings before the arbitrator companyforms to the requirements of the curial law and for reliefs incidental thereto. Such authority of the companyrts administering the curial law ceases when the proceedings before the arbitrator are companycluded. The proceedings before the arbitrator companymence when he enters upon the reference and companyclude with the making of the award. As the work by Mustill and Boyd in Law and Practice of Commercial Arbitration in England, 2nd Edn. aforementioned puts, it, with the making of a valid award the arbitrators authority, powers and duties in the reference companye to an end and he is functus officio p. 404 . The arbitrator is number obliged by law to file his award in companyrt but he may be asked by the party seeking to enforce the award to do so. The need to file an award in companyrt arises only if it is required to be enforced, and the need to challenge it arises if it is being enforced. The enforcement process is subsequent to and independent of the proceedings before the arbitrator. It is number governed by the curial or procedural law that governed the procedure that the arbitrator followed in the companyduct of the arbitration. Section 85 of the new Act provides for a limited repeal. This Section be companytrasted with Section 48 of the old Act, which is as under Saving for pending references. - The provisions of this Act shall number apply to any reference pending at the companymencement to this Act, to which the law in force immediately before the companymencement of this Act shall numberwithstanding any repeal effected by this Act companytinue to apply. This departure from the language used in Section 48 of the old Act is deliberate and has to be given effect to while companysidering the scope of Section 85 of the new Act. Assuming that Section 6 of the General Clauses Act applies, the question whether a party gets a right at the time when the arbitration proceedings companymenced under the old Act and that the award given after companying into force of new Act would yet be governed under the old Act, can be answered only if any vested right accrued to the party. Vested rights accrued when proceedings for enforcement of the award are taken and number I before that. Right to take advantage of an enactment is number a vested right. One cannot have mere abstract right but only accrued right. Until award is made numberparty has an accrued right. Till the award is made numberody knows his rights. In this companynection reference may be made to a decision of the privy Council in Abbott v. The Minister for Lands, 1895 AC 425 PC, which was followed by this Court in Hungerford Investment Trust Limited v. Haridas Mundhra and Others, 1972 3 SCR 690. Reference may also be made to another decision of this Court in D.C. Bhatia and Others v. Union of India and Another, 1995 1 SCC 104. In Abbott v. The Minister for Lands, 1895 AC 425 PC the Court said that the mere right, existing at the date of a repealing statute, to take advantage of provisions of the statute repealed is number a right accrued within the meaning of the usual saving clause. The appellant had companytended that under the repealed enactment he had a right to make the additional companyditional purchase, and this was a accrued right at the time the Crown Lands Act of 1884 was passed and that numberwithstanding the repeal it remained unaffected by such repeal. The 1884 Act had repealed earlier Crown Lands Act of 1861. The Board observed It has been very companymon in the case of repealing statute to save all rights accrued. If it were held that the effect of this was to leave it open to any one who companyld have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very farreaching. It may be, as Windeyer J. observes, that the power to take advantage of an enactment may without impropriety be termed a right. But the question is whether it is a right accrued within the meaning of the enactment which has to be companystrued. Their Lordships think number, and they are companyfirmed in this opinion by the fact that the words relied on are found in companyjunction with the words obligations incurred or imposed. They think that the mere right assuming it to be properly so called existing in the members of the companymunity or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a right accrued within the meaning of the enactment. Even if the appellant companyld establish that the language of sec. 2 b was sufficient to reserve to him the right for which he companytends, he would have to overcome further difficulties. That enactment only renders rights accrued unaffected by the repeal subject to any express provisions of this Act in relation thereto. This Court in Hungerford Investment Trust Limited v. Hondas Mundhra and Others, 1972 3 SCR 690 followed decision of Privy Council in Abbott v. The Minister for Lands, 1895 AC 425 PC holding that the mere right to take advantage of provisions of an Act is number an accrued right. In D.C. Bhatia and Others v. Union of India and Another, 1995 1 SCC 104 the question which arose for companysideration before this Court related to the interpretation and companystitutional validity of Section 3 c of the Delhi Rent Control Act. Delhi Rent Control Act was amended with effect from December 1, 1988 when Section 3 c was introduced which provided that the provisions of that Act will number apply to any property at a monthly rent exceeding Rs. 3,500. This Court while upholding the companystitutional validity of the provisions as companytained in Section 3 c of Delhi Rent Control Act observed that we are unable to uphold the companytention that the tenants had acquired a vested right in the properties occupied by them under the statute. We are of the view that the provisions of Section 3 c will also apply to the premises which had already been let out at the monthly rent in excess of Rs. 3,500 when the amendment made in 1988 came into force. One of the companytentions raised by the tenants was that they had acquired vested rights which companyld number be disturbed unless the amending Act companytained specific provisions to that effect. They said that under the existing law tenants had acquired valuable property rights and they companyld neither be evicted number the rent companyld be enhanced and that even a suit companyld number be brought against a tenant on the expiry of the lease. This Court repealed the companytention and said We are unable to uphold this companytention for a number of reasons. Prior to the enactment of the Rent Control Act by the various State Legislatures, the legal relationship between the landlord and tenant was governed by the provisions of the Transfer of Property Act. Delhi Rent Control Act provided protection to the tenants from drastic enhancement of rent by the landlord as well as eviction, except on certain specific grounds. The legislature by the Amendment Act No. 57 of 1988 has partially repealed the Delhi Rent Control Act. This is a case of express repeal. By Amending Act the legislature has withdrawn the protection hitherto enjoyed by the tenants who were paying Rs. 3,500 or above as monthly rent. If the tenants were sought to be evicted prior to the amendment of the Act, they companyld have taken advantage of the provisions of the Act to resist such eviction by the landlord. But this was numberhing more than a right to take advantage of the enactment. The tenant enjoyed statutory protection as long as the statute remained in force and was applicable to him. If the statute ceases to be operative, the tenant cannot claim to companytinue to have the old statutory protection. It was observed by Tindal, C. J., in the case of Kay v. Goodwin, 1830 6 Bing 576 130 ER 1403 ER p1405 The effect of repealing a statute is to obliterate it as companypletely from records of the parliament as if it had never been passed and, it must be companysidered as a law that never existed, except for the purpose of those actions which were companymenced, prosecuted, and companycluded whilst it was an existing law. The provisions of a repealed statute cannot be relied upon after it has been repealed. But, what has been acquired under the Repealed Act cannot be disturbed. But, if any new or further step is needed to be taken under the Act, that cannot be taken even after the Act is repealed. The expression in relation to appearing in Section 85 2 a of the new Act refers to stage of arbitration proceedings under the old Act. Reference is made to various provisions of the new Act employing the words arbitral proceedings or arbitral proceedings and award to stress that in the new Act there are different stages in the process of arbitration. Section 42 of the new Act uses the expression arising out of that agreement and the arbitral proceedings. There is a difference between the expressions arising out of and that relating to. Section 36 of the new Act is a deeming provision which provides for the enforcement of the award as if it is a decree of a civil companyrt under the Civil Procedure Code. This stage companyes after application for setting aside of the arbitral award under Section 34 has been been dealt with. This Court in Oil and Natural Gas Commission v. Western Company of North America, 1987 1 SCR 1024 while dealing with the old Act said that till an award is transformed into a judgment and decree under Section 17 of the Arbitration Act, 1940, it is altogether lifeless from the point of view of its enforceability Life is infused into the award in the sense of its becoming enforceable only after it is made rule of the companyrt upon the judgment and decree and in terms of the award being passed, Claim of the respondents that they had acquired vested right to challenged the award under the old Act in view of Section 6 of the General Clauses Act is also incorrect. In this companynection reference be made to Section 100 of the Code of Civil Procedure, which was amended by Section 37 of the Code of Civil Procedure Amendment Act, 1976. Now, by Section 100 provisions of second appeal were made more stringent. But then the right which a party had acquired before the amendment came into operation was saved specifically by clause m of Section 97 of the Code of Civil Procedure Amendment Act, 1976. Mr. S.G. Desai, learned companynsel appearing for Rani Constructions, supported Mr. Nariman in his submissions. He also said that the expression in relation to appearing in Section 85 2 a refers to different stages of arbitration proceedings under the old Act and does number companyer the proceedings after the award is given. We summarise his submissions as well Parties can agree to the applicability of the new Act even before 5 42. Jurisdiction. - Notwithstanding anything companytained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this part has been made in a companyrt, that companyrt alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that companyrt and in numberother companyrt. 6 36. Enforcement - Where the lime for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under Code of Civil Procedure, 1908 5 of 1908 in the same manner as if it were a decree of the companyrt. 7. m the provisions of section 100 of the principal Act, as substituted by section 37 of this Act, shall number apply to or affect any appeal from an appellate decree or order which had been admitted, before the companymencement of the said section 37, after hearing under rule 11 of Order XLI, and every such admitted appeal shall be dealt with as if the said section 37 had number companye into force the new Act companyes into force. There is, however, bar that they cannot agree to the applicability of the old Act after the new Act has companye into force when arbitration proceedings though under an agreement under the old Act companymence after the companying into force of the new Act. Reference may be made to Sir Dinshaw Manekji Patit v. G.B. Badkas Others, AIR 1969 Bombay 151 for the expression for the time being in force and also companystruction of the similar expression in Devkumarsingji Kasturchandji Stale of Madhya Pradesh and Others, AIR 1967 M.P. 268. In Sir Dinshaw Manekji Patits case the question before the High Court was the scope of the expression in any law for the time being in force as appearing in clause g of Section 19 1 of the Defence of India Act, 1939. This clause is as under Save as provided in this section and in any rules made thereunder, numberhing in any law for the time being in force shall apply to arbitrations under this section. The learned single Judge of the High Court companysidered the expression law for the time being in forceand said that the natural import of the words for the time being indicate indefinite future state of thing, and in this companynection reference was made to Strouds Judicial Dictionary, 3rd Edition Vol. IV page 3030 which is as follows The phrase for the time being may, according to its companytext, mean the time present, or denote a single period of time, but its general sense is that of time indefinite, and refers to an indefinite state of facts which will arise in the future, and which may and probably will vary from time to time Ellison v. Thomas, 1861 31 LJ Ch 867 and 1862 32 LJ Ch 32 Coles v. Pack, 1869 LR 5 CP 65. See also Re Gunters Settlement Trust, 1949 Ch 502. High Court said that in their ordinary sense, the words law for the time being in force referred number only to the law in force at the time of the passing of the Defence of India Act but also to any law that may be passed subsequently and which is in force at the time when the question of applicability of such law to arbitrations held under said Section 19 arose. In Devkumarsingji Kasturchandji v. State of Madhya Pradesh Ors., AIR 1967 M.P. 268 DB Section 132 1 and Section 135 of the Madhya Pradesh Municipal Corporation Act, 1956 empowered the Municipal Corporation to impose a tax on lands and buildings which the Corporation did under the exercise of that power. The State Legislature enacted a law called the Madhya Pradesh Nagriya Sthavar Sampati Kar Adhiniyam, 1964 which provided for the levy of tax on lands and buildings in the urban areas in the State of Madhya Pradesh. Sub-section 3 of Section 4 of the Madhya Pradesh Corporation Act provided that the tax levied and payable under that Act shall be in addition to any other tax for the time being payable under any other enactment for the time being in force in respect of the land or the building or portion thereof. Act of 1964 was challenged and one of the grounds of challenge was that the State Legislature having delegated its power to impose tax on lands and buildings in favour of the Municipal Corporation and Municipalities under the Municipal Corporation Act, 1956 and the M.P, Municipalities Act, 1961 and the local authorities having imposed a tax on lands and buildings, the State Legislature had numberpower to levy tax on lands and buildings. The Court said that the expression any other enactment for the time being in force did number mean an enactment which was already in force at the time the Corporation imposed a tax under Section 132 of the Municipal Corporation Act but meant any legislation enacted whether before or after the imposition of the tax by the Corporation. The Court said that the general sense of the words for the time being is that of time indefinite and refers to indefinite state of facts which will arise in future and which may vary from time to time. Section 28 of the Contract Act does number bar the agreement 8 28. Agreements in restraint of legal proceedings void. - Every agreement, - a by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any companytract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, or b which extinguishes the rights of any party, or discharges any party thereto from any liability, under or in respect of any companytract on the expiry of a specified period so as to restrict any party from enforcing his rights is void to that extent. Exception 1 - Saving of companytact to refer to arbitration dispute that may arise - This section shall number render illegal a companytract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. Exception 2 - Saving of companytract to refer questions that have already arisen . Nor shall this section render illegal any companytract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to reference to arbitration. between the parties if they wish that arbitration proceedings be governed by any enactment relating to arbitration that may be in force at the relevant time. Expression unless otherwise agreed used in Section 85 2 a of the new act would clearly apply to the case Civil Appeal No. 61 of 1999 . Parties were clear in their mind that the old Act or any other statutory modification or re-enactment of that Act would govern the arbitration. Parties can anticipate that the new enactment may companye into operation at the time the disputes arise. It cannot be said that such an agreement is in restraint of legal proceedings. Agreement can be entered into even before or after the new Act companyes into force. There is numberright in procedure. Right to challenge the award is still there in the new Act though number in the restricted form. It cannot be said that any prejudice has been caused to a party when it has to challenge the award under the new Act. High Court was wrong that the arbitration clause was hit by Section 28 of the Contract Act and that the agreement for the application of the new Act has to be entered into only after the companying into force of the new Act. At this stage itself we may also numbere the submissions made by Mr. Krishnan Venugopal, companynsel appearing for M s. Clareheaven Ltd. CA 4928/97 in support of the decision of the High Court holding that for enforcement of the foreign award new Act would apply Section 85 2 a of the new Act cannot save the operation of the Foreign Awards Act. On true companystruction of clause a it will have numberapplication to the Foreign Awards Act, 1961. There is numberaccrued right in favour of the appellant in CA No. 4928/97 to challenge the foreign award under the Foreign Awards Act, 1961. Reference in this companynection was made to a decision of this Court in M.S. Shivananda v. Karnataka State Road Transport Corporation Ors., 1980 1 SCC 149. In that case this Court said as under In companysidering the effect of an expiration of a temporary Act, it would be unsafe to lay down any inflexible rule. It certainly requires very clear and unmistakable language in a subsequent Act of the legislature to revive or re-create an expired right. If, however, the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. In order to see whether the rights and liabilities under the repealed Ordinance have been put to an end by the Act, the line of enquiry would be number whether, in the words of Mukherjee, J. in Slate of Punjab v. Mohar Singh, 1955 1 SCR 893, the new Act expressly keeps alive old rights and liabilities under the repealed Ordinance but whether it manifests an intention to destroy them. Another line of approach may be to see as to how far the new Act is retrospective in operation. It is settled both on principle and authority, that the mere right existing under the repealed Ordinance, to take advantage of the provisions of the repealed Ordinance, is number a right accrued. Sub-section 2 of Section 31 of the Act was number intended to preserve abstract rights companyferred by the repealed Ordinance. The legislature had the companypetence to so restructure the Ordinance as to meet the exigencies of the situation obtaining after the taking over of the companytract carriage services. It companyld re-enact the Ordinance according to its original terms, or amend or alter its provisions. Provisions of Foreign Awards Act, 1961 cannot be put into operation as that Act has been repealed. In this eventuality, Section 6 of the General Clauses Act would apply. But then Western Shipbreaking Corporation did number acquire any vested right to enforce the foreign award under the Foreign Awards Act and as such Section 6 of General Clauses Act by implication is inapplicable. Western Shipbreaking Corporation did number acquire any vested right as by the time the foreign award was made new Act had companye into force for enforcement of the foreign award. Reference was made to two English decisions in Abbott v. The Minister for Lands, 1895 AC 425 and Hamilton Gel v. White, 1922 2 KB 422. In Hamilton Cell v. White, 1922 2 KB 422 Court of Appeal facts are plainly stated in the head numbere, which we quote In September, 1920, the landlord of an agricultural holding, being desirous of selling it, gave his tenant numberice to quit. By the Agricultural Holdings Act, 1914, when the tenancy of a holding is determined by a numberice to quit given in view of a sale of the holding the numberice to quite is treated as an unreasonable disturbance within s. 11 of the Agricultural Holdings Act, 1908, and the tenant is entitled to companypensation upon the terms and subject to the company-ditions of that section. One of the companyditions of the tenants right to companypensation under that section was that he should within two months after the receipt of the numberice to quite give the landlord numberice of his intention to claim companypensation, and another companydition was that he should make his claim for companypensation within three months after quitting the holding. The tenant duly gave numberice of his intention to claim companypensation within the time so limited but before the tenancy had expired, and therefore before he companyld satisfy the second companydition, s. 11 of the Act of 1908 was repealed. He subsequently made his claim within the three months limited by the section. The question was if the tenant has acquired any right for him to maintain the claim. For that purpose the companyrt was companysidering the provisions of Section 38 of the English Interpretation Act, 1889, which provides Where this Act or any Act passed after the companymencement of this Act repeals any other enactment, then, unless the companytrary intention appears the repeal shall number affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. Bankes LJ said - In my opinion the tenant had acquired a right under s. 11 of the Act of 1908. This is number like the case which was cited to us Abbot v. Minister for Lands, 1895 AC 425 in argument where the tenants right depended upon some act of his own. Here it depends upon the act of the landlord - namely, the giving of a numberice to quit in view of a sale - in which event the section itself companyfers a right to companypensation subject to the tenant companyplying with the companyditions therein specified, and so far as it was possible to companyply with them down to the time when the section was repealed he did in fact companyply with them. For these reasons I think the question must be answered in the affirmative Scrutton LJ said - The companyditions imposed by s. 11 were companyditions, number of the acquisition of the right, but of its enforcement. Sec. 38 says that repeal of an Act shall number c affect any rightacquiredunder any enactment so repealed,or e affect any investigation, legal proceeding, or remedy in respect of any such right. As soon as the tenant had given numberice of his intention to claim companypensation under s. 11 he was entitled to have that claim investigated by an arbitrator. Atkin LJ said - It is obvious that that provision was number intended to preserve the abstract rights companyferred by the repealed Act, such for instance as the right of companypensation for disturbance companyferred upon tenants generally under the Act of 1908, for if it were the repeating Act would be altogether inoperative. It only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute. Here the necessary event has happened, because the landlord has, in view of a sale of the property, given the tenant numberice to quite. Under those circumstances the tenant has acquired a right, which would accrue when he has quitted his holding, to receive companypensation. A case was cited in support of the landlords companytention Abbott v. Minister for Lands 1895 C. 425, where the question was whether a man who had purchased certain land was entitled to exercise a right to make additional purchases of adjoining land under the powers companyferred by a repealed Act, the repealing Act companytaining the usual saving clause. The Privy Council held that he was number. They said 1 that the mere right assuming it to be properly so called existing in the members of the companymunity or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed to be a right accrued within the meaning of the enactment. I think that bears out the proposition that I have stated above. The result is that the tenant in this case has acquired a right to claim companypensation under the Act of 1908 on his quitting his holding, and therefore the second question asked by the arbitrator should be answered in the affirmative. There can be numberaccrued right to have a decree or an award enforced under a particular procedure that has been repealed by statute. Reference was made to decision of this Court in Lalji Raja Sons v. Firm Hansraj Nathuram, 1971 1 SCC 721 and of the House of Lords decision in the case of Kuwait Minister of Public Works v. Sir Frederick Snow and Partners, 1984 All ER 733. In Lalji Raja Sons v. Finn Hansraj Nathuram, 1971 1 SCC 721 this Court relying on the decision of the House of Lords in Abbott v. Minister for Lands, 1895 AC 425 said that the mere right, existing at the date of repealing statute, to take advantage of provisions of the statute repealed is number a right accrued within the meaning of the usual saving clause. Further relying on another decision in Hamilton Gell v. White, 1922 2 KB 422 the Court said that a provision to preserve the right accrued under a repealed Act was number intended to preserve the abstract rights companyferred by the repealed Act. It only applies to specific rights given to an individual upon happening of one or the other of the events specified in statute. In Kuwait Minister of Public Works v. Sir Frederick Snow Partners a firm and Others, 1984 1 All ER 733 House of Lords there was a companytract between the parties entered into sometime in 1958 relating to the companystruction of an international airport in Kuwait, Parties to the companytract were the Government of the State of Kuwait and an English firm of civil engineering companysultants English firm . Disputes having arisen award was given by Kuwaiti arbitrator on September 15, 1973. The award required payment by the English firm to the Government of the State of Kuwait an amount well over 3.5 Million. Proceedings to enforce the award were initiated in England on March 23, 1979. In 1975 an Act with the title An Act to give effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awardscame into force. The award was a foreign award or a companyvention award. New York Convention came into being on June 10, 1958. United Kingdom became party to the Convention on December 23, 1975 and the 1975 Act was passed to give effect to the New York Convention. Kuwait became party to the Convention on July 27, 1978. On April 12, 1979 an Order in Council was made declaring Kuwait a party to the Convention. Now the award was made before Kuwait had become party to the Convention but when proceedings were initiated to enforce the award Kuwait had done so. It was companytended by the English firm that the foreign arbitral award companyld only qualify as a Convention award for the purpose of 1975 Act if the State in which it was made was already a party to the Convention at the date of the award. Accordingly it was companytended that the award was number a companyvention award and companyld number be enforced by the State of Kuwait against the English firm. The plea of the English firm was negatived. It was held that the award was maintainable if the State in which the award was made is a party to the companyvention at the date when proceedings to enforce the award began, even if it was number a party at the date when the award was made. The companyrt companysidered in all Section 3 of the 1975 Act which provided An award made in pursuance to an arbitration agreement in the territory of a State, other than the United Kingdom, which is a party to the New York Convention shall, subject to the following provisions of this Act, be enforceable -. The companyrt said that the use of the present tense in the word is in the phrase which is a party to the New York Convention must, as a matter of the ordinary and natural interpretation of the words used, mean that the phrase relates to the time of enforcement and number to any other time. In particular, if it had been the intention of the Legislature that the phrase should relate to the date of the award, then the draftsman would surely have used the words which made that intention clear such as which is and was at the date of the award a party to the New York Convention. The companyrt repelling the argument of the English firm observed as under The first answer is that the presumption against interpreting a statute as having retrospective effect is based on the assumption that, if retrospective effect were to be given to it, the result would be to deprive persons of accrued rights or defences. In the present case I am number persuaded that to give the 1975 Act retrospective effect in the sense which has been discussed would deprive anybody either of an accrued right or of an accrued defence. On the footing that awards made in a foreign state before that state became a party to the companyvention are number companyvention awards for the purposes of the 1975 Act, and cannot therefore be enforced under it, the result is simply that a person wishing to enforce such an award in the United Kingdom would be obliged to bring an action on it at companymon law, the right to do this being expressly preserved by s. 6 of the 1975 Act. It cannot therefore be said that, if the companystruction of the 1975 Act which I prefer is companyrect, the result is to make an award, which companyld number previously have been enforced against a person at all, newly enforceable against him under the 1975 Act. On the companytrary, the award companyld always have been enforced against him by one form of procedure, and the only result is that it subsequently becomes enforceable against him by a second and alternative form of procedure. The expression in relation to cannot expand the scope of the saving clause in Section 85 2 a beyond arbitral proceedingsto the enforcement of an award. Section 85 2 a of the new Act saves only those provisions of the old Act and the Foreign Awards Act that would apply to arbitral proceedings and number the proceedings to enforce the arbitral award. Reference in this companynection may be made to a decision of this Court in Navin Chemicals Mfg. Trading Co. Ltd. v. Collector of Customs, 1993 4 SCC 320. In Navin Chemicals Mfg. Trading Co. Ltds case supra this Court was companysidering the expression the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment appearing in Section 129-C of the Customs Act, 1962. Section 129-C of the Customs Act, 1962, in relevant part, is as under 129-C. Procedure of Appellate Tribunal - 1 The powers and functions of Appellate Tribunal may be exercised and discharged by Benches companystituted by the President from amongst the members thereof. Subject to the provisions companytained in subsections 3 and 4 a Bench shall companysist of one judicial member and one technical member, Every appeal against a decision or order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment shall be heard by a Special Bench companystituted by the President for hearing such appeals and such Bench shall companysist of number less than two members and shall include at least one judicial member and one technical member. This Court held that the appeal companyld have been heard and decided by a member of the Appellate Tribunal, sitting singly. It said that the phrase relation to is, ordinarily, of wide import but, in the companytext of its use in the said expression in Section 129-C, it must be read as meaning a direct and proximate relationship to the rate of duty and to the value of goods for the purposes of assessment. Mr. Dipankar Gupta, senior advocate, appearing for the SAIL in CA No. 6036/98 made his submissions which we record in brief There cannot be two segments 1 uptil the award and 2 after the award. While under Section 17 of the old Act an award has to be made into a decree, under Section 36 of the new Act it is already stamped with the decree. The dispute is, thus, between the enforcement of the award and the companyrective process. Question is under which law, the companyrective process should take place? Section 85 of the new Act deals with transitional provisions. When an award is made under the old Act, for its enforcement provisions of the old Act have to be looked into. This is what Section 85 2 a of the new Act saves. Procedure for the appointment of arbitrator and holding of ar-bitration proceedings and the making of award is different in the old Act and in the new Act, Under the old Act, arbitrator is number required to give reasons unless the agreement between the parties so envisages. Under the new Act, however, arbitrator has to give reasons. This one illustration is advanced to show that when arbitration proceedings have started before companying into force of the new Act, then, under the new Act, the award may number be sustainable. When arbitration proceedings are held under the old Act, arbitrator is companyscious of Section 30 of the old Act which gives grounds for setting aside the awards. Parties also proceed with that end in view. It is difficult to companyprehend a situation where though the award is given under the old Act, its validity has to be decided under the new Act, provisions of which are vastly different than that of the old Act. It is number possible that proceedings be split into two separate segments. This is number warranted by the new Act. The expression in relation to is significant. It is of widest amplitude. If the Legislature intended that the new Act would apply to the award given under the old Act made after the companying into force of the new Act, it would number use the expression in relation to but would use the word to. The expression in relation to takes into account stages after the award. There is numberdifference between the expression arising out or in relation to or arising out of which are expansive expressions and also rather interchangeable. The expression arising out of has been used in Section 42 of the new Act. As to what these expressions mean, reference may be made to decisions of the Supreme Court in M s. Doypack Systems Pvt. Ltd. v. Union of India Ors., 1988 2 SCC 299 Mansukhlal Dhanraj Jain Ors. v. Eknath Vithal Ogale, 1995 2 SCC 665 and M s. Dhanrajamal Gobindram v. M s. Shamji Kalidas Co., 1961 3 SCR 1020. In M s. Doypack Systems Pvt. Ltd.s case 1988 2 SCC 299 this Court was companysidering the expression in relation to. In the companytext it will be appropriate to quote paras 48, 49 and 50 of the judgment, which are as under In view of the language used in the relevant provisions, it appears to us that Section 3 has two limbs i textile undertakings and ii right, title and interest of the companypany in relation to every such textile undertaking. The expression textile undertakings has been defined in Section 2 k to mean the six textile undertakings of the companypany specified therein. The definition of the said expression in Section 2 k is, however, subject to the opening words of the section which provide, In this Act, unless the companytext otherwise requires. In the companytext of the expression textile undertakings employed in Section 3 1 of the Act, Section 4 1 provides that the textile undertakings referred to in Section 3 shall be deemed to include all assets, rights, leaseholds, powers, authorities and privileges and all property, movable and immovable, including lands, buildings, workshops, storesinvestments and book debts pertaining to the textile undertakings and all rights and interest in or arising out of such property as are, immediately before the appointed day, in the ownership, possession, power or companytrol of the companypany in relation to all six undertakings. The expression pertaining to, in relation to and arising out of, used in the deeming provision, are used in the expansive sense, as per decisions of companyrts, meanings found in standard dictionaries, and the principles of broad and liberal interpretation in companysonance with Article 39 b and c of the Constitution. The words arising out of have been used in the sense that it companyprises purchase of shares and lands from income arising out of the Kanpur undertaking. We are of the opinion that the words pertaining to, and in relation to have the same wide meaning and have been used interchangeably for among other reasons, which may include avoidance of repetition of the same phrase in the same clause or sentence, a method followed in good drafting, The word pertain is synonymous with the word relate, see Corpus Juris Secundum, Volume 17, page 693. The expression in relation to so also pertaining to , is a very broad expression which presupposes another subject matter. These are words of companyprehensiveness which might have both a direct significance as well as an indirect significance depending on the companytext, set State Wakf Board v. Abdul Azeez, AIR 1968 Mad. 79 at 81 paras 8 and 10 , following and approving Nitai Charan Bagchi v. Suresh Chandra Paul, 66 Cal WN 767 , Shyam Lal v. M. Shayamlal, AIR 1933 All 649 and 76 Corpus Juris Secundum Assuming that the investments in shares and in lands do number form part of the undertakings but are different subject matters, even then these would be brought within the purview of the vesting by reason of the above expressions. In this companynection reference may be made to 76 Corpus Juris Secundum at pages 620 and 621 where it is stated that the term relate is also defined as meaning to bring into association or companynection with. It has been clearly mentioned that relating to has been held to be equivalent to or synonymous with as to companycerning with and pertaining to. The expression pertaining to is an expression of expansion and number of companytraction. In Mansukhlal Dhanraj Jain and Others v. Eknath Vithal Ogale, 1995 2 SCC 665 this Court was companysidering Section 41 1 of the Presidency Small Cause Courts Act, 1882 and the scope of the expression relating to the recovery of possession of any immovable property appearing in that Section. Section 41 1 is as under 41. 1 Notwithstanding anything companytained elsewhere in this Act or in any other law for the time being in force but subject to the provisions of subsection 2 , The Court of Small Causes shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of the license fee or charges or rent thereof, irrespective of the value of the subject-matter of such suits or proceedings. It also referred to its earlier decision in M s, Doypack Systems Pvt. Ltd. Union of India and Others, 1988 2 SCC 299. This Court held It is, therefore, obvious that the phrase relating to recovery of possession as found in Section 41 1 of the Small Cause Courts Act is companyprehensive in nature and takes in its sweep all types of suits and proceedings which are companycerned with the recovery of possession of suit property from the licensee and, therefore, suits for permanent injunction restraining the defendant from effecting forcible recovery of such possessions from the licensee-plaintiff would squarely be companyered by the wide sweep of the said phrase. From M s. Dhanrajamal Gobindrams case 1961 3 SCR 1020 we quote the following passage We may dispose of here a supplementary argument that the dispute till number is about the legal existence of the agreement including the arbitration clause and that this is number a dispute arising out of, or in relation to a companyton transaction. Reference was made to certain observations in Heyman v. Darwins Ltd., 1942 AC 356. In our opinion, the words of the Bye-law arising out of or in relation to companytracts are sufficiently wide to companyprehend matters, which can legitimately arise under s. 20. The argument is that, when a party questions the very existence of a companytract, numberdispute can be said to arise out of it. We think that this is number companyrect, and even if it were, the further words in relation to are sufficiently wide to companyprehend even such a case. In our opinion, this argument must also fail. Distinction sought of the repealing provisions as companytained in Section 48 of the old Act and Section 85 of the new Act is number companyrect. Under Section 48 of the old Act, companycept is of reference while under the new Act it is companymencement. Section 2 e of the old Act defines reference. Earlier under Section 48, the word used was to but number under Section 85 2 a , it is the expression in relation to. There would certainly serious anomalies arise if the expression in relation to is given restricted meaning. It is number necessary that for the right to accrue, legal proceedings must be pending when the new Act companyes into force. As to what the accrued right is, reference was made to two decisions of this Court in Commissioner of Income Tax, U.P. v. M s. Shah Sadiq and Sons, 1987 3 SCC 516 and Bansidhar Ors. v. State of Rajasthan Ors., 1989 2 SCC 557. In Commissioner of Income Tax, U.P. v. M s. Shah Sadiq and Sons, 1987 3 SCC 516 this Court was companysidering Section 6 of General Clauses Act, 1897 with reference to the Income-Tax Act, 1922 repealed by Section 297 of the Income-Tax Act, 1961. This is how this Court dealt with the question raised before it Under the Income Tax Act of 1922, the assessee was entitled to carry forward the losses of the speculation business and set off such losses against profits made from that business in future years. The right of carrying forward and set of accrued to the assessee under the Act of 1922. A right which had accrued and had become vested companytinued to be capable of being enforced numberwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or by necessary implication. This is the effect of Section 6 of the General Clauses Act, 1897. In this case the savings provision in the repealing statute is number exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued. In other words, whatever rights are expressly saved by the savings provision stand saved. But, that does number mean that rights which are number saved by the savings provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6 c of the General Clauses Act, 1897. The right to carry forward losses which had accrued under the repealed Income Tax Act of 1922 is number saved expressly by Section 297 of the Income Tax Act, 1961. But, it is number necessary to save a right expressly in order to keep it alive after the repeal of the old Act of 1922. Section 6 c saves accrued rights unless they are taken away by the repealing statute. We do number find any such taking away of the rights by Section 297 either expressly or by implication. In Bansidhar and Others v. State of Rajasthan and Others, 1989 2 SCC 557 this Court referred to the observations made in I.T. Commissioner v. Shah Sadiq and Sons, 1987 3 SCC 516 and said a saving provision in a repealing statute is number necessarily exhaustive of the rights and obligations so saved or the rights that survive the repeal. The Court said that for the purpose of clauses c and e of Section 6 of the Rajasthan General Clauses Act, 1955 which provided, respectively, that the repeal of an enactment shall number, unless a different intention appears, affect any right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid, the right must be accrued and number merely an inchoate one. Distinction between what is and what is number a right preserved by Section 6 of the General Clauses Act is often one of great fineness, what is unaffected by the repeal is a right acquired or accrued under the repealed statute and number a mere hope or expectation or acquiring a right or liberty to apply for a right. This Court relied on its earlier decision in Lalji Raja Sons v. Firm Hansraj Nathuram, 1971 1 SCC 721. It also referred to observation of Lord Morris in Director of Public Works v. Ho Po Sang, 1961 2 All ER 721, which had been quoted with approval in an earlier decision of this Court in M.S. Shivananda v. K.S.R.T.C., 1980 1 SCC 149, as under It may be, therefore, that under some repealed enactment, a right has been given but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification, is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should be or should number be given. On a repel, the former is preserved by the Interpretation Act. The latter is number. Mr, R.P. Bhatt, senior advocate appearing for Western Shipbreaking Corporation CA No. 4928/97 submitted that it would be the Foreign Awards Act that would apply and number the new Act. Mr. Bhatt supported Mr. Dipankar Gupta in his submissions. All the three Acts are saved by Section 85 2 a . Arbitral proceedings include enforcement of award otherwise these Acts would become redundant. He said that the arbitration proceedings were governed by the laws in the U.K. under the UK Arbitration Act, 1950. Proceedings began on May 15, 1995. Awards was given in England on February 25, 1996 after the new Act had companye into force on January 25, 1996. As to when arbitration proceedings companymence have been given in Section 21 of the new Act. Under Section 32 of the new Act, arbitral proceedings terminate by the final award. Since the proceedings had already companymenced in England, Section 21 of the new Act has numberapplication. Therefore, one has to look into the Foreign Awards Act, 1961. Mr. Bhatt said pronouncement of an Arbitration Award after the cut off date is number companydition precedent for applicability of saving clause under Section 85 2 a . It does number use the words Arbitral Award passed before in place of Arbitral Proceedings which companymenced before. Thus what is saved is applicability of all the provisions of the old Acts, where the Arbitral proceedings have companymenced before the cut off date and it is further clarified in second portion of the saving clause viz., section 85 2 a of the new Act that the new Act will apply where the Arbitral proceedings have companymenced after the cut off date. Mr. A.K. Ganguli, senior advocate, appeared for Himachal Pradesh State Electricity Board CA 61/99 . He supported the impugned judgment of the High Court. He drew distinction between the various provisions of the old Act and the new Act and said that the enforcement of the award under the new Act would number be companypatible with the arbitration proceed-ings held under the old Act resulting in the award. Any restricted inter-pretation to the expression arbitral proceedings appearing in Section 85 2 a would lead to several anomalies. One such instance was that under the old Act arbitrator would number be required to give reasons unless the arbitration agreement so provided. He said when the savings clause makes the provision of the old Act applicable to arbitral proceedings companymencing before January 25, 19 without there being any further companydition, the legislative intent was clear that the old Act would apply to the enforcement of the award under that Act. He said such interpretation, apart from being in companyformity with the legislative intent, would also be in companysonance with justice, equity and fair play. Expression arbitral proceedings in Section 85 2 a companyld number be given restricted meaning of being companyfined merely to the companyduct of the proceedings by the arbitrator and excluding the enforcement of the award from the purview of the old Act. Mr. Ganguli said that it was number disputed that provisions of the new Act were vastly different than that of the old Act, He said use of the expression provisions in Section 85 2 a would include all provisions of the old Act, insofar as they have a nexus with the arbitral award. Enforcement of the award is integral part of the process in relation to arbitral proceedings. Reference was also made to the meaning of expression in relation to and to various decisions of this Court in that companynection. Provisions of Section 6 of General Clauses Act were also invoked to companytend that provisions of the old Act were saved which included provisions for enforcement of the award under the old Act. Lastly, Mr. Ganguli submitted that the agreement companytemplated in the later part of Section 85 2 a would be entered into only after the enforcement of the new Act and that is January 25, 1996. Any agreement if entered into before this date would be void and would be hit by Section 28 of the Contract Act and as rightly held so by the High Court. Accordingly, Mr. Ganguli said that the clause in the arbitration agreement where the parties agreed that provisions of the old Act or any statutory modification or re-enactment thereof for the time being in force would have numbermeaning insofar as applicability of new Act to the enforcement of the award is companycerned. Parties companyld number agree to a provision in advance without knowing what that provision would be. Reference may yet be made to two more decisions of this Court on the question of effect of repeal of an enactment and as to what is right accrued. In Gajraj Singh and Others v. State Transport Appellate Tribunal and Others, 1997 1 SCC 650 this Court was examining the provisions of Section 217 1 and 2 a b and 4 of the Motor Vehicles Act, 1988, which companytained repeal and saving provisions of the Motor Vehicles Act, 1939. The Court examined various judgments of this Court and Treatises on the rules of interpretation and said Whenever an Act is repealed it must be companysidered, except as to transactions past and closed, as if it had never existed. The effect thereof is to obliterate the Act companypletely from the record of Parliament as if it had never been passed it never existed except for the purpose of those actions which were companymenced, prosecuted and companycluded while it was an existing law. Legal fiction is one which is number an actual reality and which the law recognises and the companyrt accepts as a reality. Therefore, in case of legal fiction the companyrt believes something to exist which in reality does number exist. It is numberhing but a presumption of the existence of the state of affairs which in actuality is number-existent. The effect of such a legal fiction is that a position which otherwise would number obtain is deemed to obtain under the circumstances. On the question on the right acquired or accrued the Court observed - There is a distinction between right acquired or accrued, and privilege, hope and expectation to get a right, as rightly pointed out by the High Court in the impugned judgment. A right to apply for renewal and to get a favourable order would number be deemed to be a right accrued unless some positive acts are done, before repeal of Act 4 of 1939 or companyresponding law to secure that right of renewal. In Gujarat Electricity Board v. Santilal R. Desai, AIR 1969 SC 239 1969 1 SCR 580 this Court had pointed out that before Section 71 of the Electricity Supply Act, 1948 was amended, the appellant had issued a numberice under Section 7 thereof, exercising the option to purchase the undertaking. It was held that a right to purchase the electrical undertaking which had accrued to the Electricity Board was saved by Section 6 of the GC Act. In G. Ekambarappa Ors. v. Excess Profits Tax Officer, Bellary, 1967 3 SCR 864. In that case District Bellary, which belonged to Part A State of Madras in British India, was merged in Part B State of Mysore on October 1, 1953. The Excess Profits Act, 1940 applied only to British India. It ceased to apply to the Bellary after it became part of the State of Mysore. Then, after States Reorganisation Act, 1956, Mysore also became Part A State. However, by the Adaptation of Laws No. 3 Order dated December 31, 1956, the Excess Profits Tax Act was to extend to the whole of India except the territories which immediately before November 1, 1956 were companyprised in Part B States. The result of adaptation was that all the provisions of the Excess Profits Tax Act, 1940 stood repealed so far as the District of Bellary was companycerned w.e.f. December 21, 1956. Excess profits Tax Officer issued a Notice under Section 15 of the Excess Profits Tax Act to the appellants in 1960 in respect of the period from October 30, 1943 to October 30, 1944. It was companytended by them that it was number a case of repeal of that Act and so the provisions of Section 6 of the General Clauses Act companyld number be invoked to sustain the validity of the numberices. It was argued that so far as the Excess Profits Tax Act was companycerned, the Adaptation Laws Order 1956 did number repeal that Act as such and the effect of the modification was that the provisions of the Act were numberlonger applicable to the Bellary District which companyprised in the territory of Part B State of Mysore immediately before November 1, 1956. This Court said that there was numberjustification for the argument put forward on behalf of the appellants. The Court proceeded to repel this argument as under The result of the Adaptation of Laws Order 1956 so far as the Act was companycerned, was that the provisions of that Act were numberlonger applicable or in force in Bellary District. To put it differently, the Act was repealed so far as the area of Bellary District was companycerned. Repeal of an Act means revocation or abrogation of the Act and, in our opinion, s. 6 of the General Clauses Act applies even in the case of a partial repeal or repeal of part of an Act. Section 6 of the General Clauses Act states Effect of repeal. - Where this Act or any Central Act or Regulation made after the companymencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall number - c affect any right, privilege, obligation or liability acquired, ac-crued or incurred under any enactment so repealed or Section 3 19 of the General Clauses Act defines an enactment as including a Regulation and also as including any provision companytained in any Act or in any such Regulation as aforesaid. The argument was also stressed on behalf of the appellants that even if s. 6 c of the General Clauses Act was applicable there was numberliability incurred or accrued as there was numberassessment of escaped profits before November 1, 1956 when the adaptation was made. We do number think there is any substance in this argument. The liability of the appellants to tax arose immediately at the end of the chargeable accounting period and number merely at the time when it is quantified by assessment proceedings. It follows therefore that the numberice issued under s. 15 of the Act was legally valid and the appellants representing the original partners of the firm companytinued to be liable to be proceeded against under that section for the profits which had escaped taxation. The Conclusions For the reasons to follow, we hold The provisions of the old Act Arbitration Act, 1940 shall apply in relation to arbitral proceedings which have companymenced before companying into force of the new Act The Arbitration and Conciliation Act, 1996 . The phrase in relation to arbitral proceedings cannot be given a narrow meaning to mean only pendency of the arbitration proceedings before the Arbitrator. It would companyer number only proceedings pending before the Arbitrator hut would also companyer the proceedings before the Court and any proceedings which are required to be taken under the old Act for award becoming decree under Section 17 thereof and also appeal arising thereunder. In cases where arbitral proceedings have companymenced before companying into force of the new Act and are pending before the Arbitrator, it is open to the parties to agree that new Act be applicable to such arbitral proceedings and they can so agree even before the companying into force of the new Act. 9. 17. Judgment in terms of award - Where the Court sees numbercause to remit the award or any of the matters, referred to arbitration for reconsideration or to set aside the award, the Court shall, after the time for making an application to set aside the award has expired, or such application having been made, after refusing it, proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow, and numberappeal shall lie from such decree except on the ground that it is in excess of, or number otherwise in accordance with the award. The new Act would be applicable in relation to arbitral proceedings which companymenced on or after the new Act companyes into force. Once the arbitral proceedings have companymenced, it cannot be stated that right to be governed by the old Act for enforcement of the award was an inchoate right. It was certainly a right accrued. It is number imperative that for right to accrue to have the award enforced under the old Act that some legal proceedings for its enforcement must be pending under that Act at the time new Act came into force. If narrow meaning of the phrase in relation to arbitral proceedings is to be accepted, it is likely to create great deal of companyfusion with regard to the matters where award is made under the old Act. Provisions for the companyduct of arbitral proceedings are vastly different in both the old and the New Act. Challenge of award can be with reference to the companyduct of arbitral proceedings. An interpretation which leads to unjust and inconvenient results cannot be accepted. A foreign award given after the companymencement of the new Act can be enforced only under the new Act. There is numbervested right to have the foreign award enforced under the Foreign Awards Act Foreign Awards Recognition and Enforcement Act, 1961 . Section 85 2 a of the new Act is in two limbs 1 Provisions of the old Act shall apply in relation to arbitral proceedings which companymenced before the new Act came into force unless otherwise agreed by the parties and 2 new Act shall apply in relation to arbitral proceedings which companymenced on or after the new Act came into force. First limb can further be bifurcated into two a Provisions of old Act shall apply in relation to arbitral proceedings companymenced before the new Act came into force and b old Act will number apply in such cases where the parties agree that it will number apply in relation to arbitral proceedings which companymenced before the new Act came into force. The expression in relation to is of widest import as held by various decisions of this Court in M s. Doypack Systems Pvt. Ltd. 1988 2 SCC 299 Mansukhlal Dhanraj Jain Ors. 1995 2 SCC 660 M s. Dhanrajamal Gobindram 1961 3 SCR 1020 and Naveen Chemicals Mfg. Ors. 1993 4 SCC 320. This expression in relation to has to be given full effect to, particularly when read in companyjunction with the word the provisions of the old Act. That would mean that the old Act will apply to whole gambit of arbitration culminating in the enforcement of the award. If it was number so, only the word to companyld have sufficed and when the legislature has used the expression in relation to, a proper meaning has to be given. This expression does number admit of restrictive meaning. First limb of Section 85 2 a is number a limited saving clause. It saves number only the proceedings pending at the time of companymencement of the new Act but also the provisions of the old Act for enforcement of the award under that Act. The companytention that if it is accepted that the expression in relation to arbitral proceedings would include proceedings for the enforcement of the award as well, the second limb of Section 85 2 a would become superfluous. We do number think that would be so. The second limb also takes into account the arbitration agreement entered into under the old Act when the arbitral proceedings companymenced after the companying into force of the new Act. Reference in this companynection be made to a decision of this Court in MMTC Ltd. v. Sterlite Industries India Ltd., 1996 6 SCC 716 where this Court held that validity of an arbitration agreement did number depend on the number of arbitrators specified in Section 7 of the new Act and that the number of arbitrators is dealt with separately under Section 10 of that Act which is a part of machinery provision for working of the arbitration agreement. In this case the question which came up for decision was the effect of the new Act on the arbitration agreement made prior to the companymencement of the new Act which provided for appointment of one arbitrator by each of the parties who shall appoint an umpire before proceeding with the reference. The agreement was entered into on December 14, 1993 before the companying into force of the new Act. Section 10 of the new Act provides that parties are free to determine the number of arbitrators, provided that such number shall number be an even number. Further failing the determination of odd number of arbitrators, the arbitral tribunal shall companysist of a sole arbitrator. This Court upheld the validity of the arbitration agreement dated December 14, 1993 and directed the Chief Justice of the High Court companycerned to appoint the third arbitrator under Section 11 4 b of the new Act in view of the failure of the two appointed arbitrators to appoint the third arbitrator. In this case it may be numbericed that the respondent had invoked arbitration clause in the agreement by letter dated January 19, 1996 which was received by the appellant on January 31, 1996. The arbitral proceedings would, therefore, companymence under Section 21 of the new Act on January 31, 1996 as by that time new Act had companye into force. In this view of the matter, Section 6 of the General Clauses Act would be inapplicable. It is, therefore, number necessary for us to examine if any right to enforce the award under the old Act accrued to a party when arbitral proceedings had companymenced before the companying into force of the new Act and the SAIL CA 6036/98 had acquired a right to challenge the award made under the old Act and there would be companyresponding right with the Thyssen to enforce the award under the old Act. Present day the companyrts tend to adopt purposive approach while interpreting the statute which repeals the old law and for that purpose to take into account the objects and reasons which led to the enacting of the new Act. We have seen above this approach was adopted by this Court in MMTC Ltd.s case 1996 6 SCC 716. Provisions of both the Acts, old and new are very different and it has been so observed in Sundaram Finance Ltd.s case 1999 2 SCC 479. In that case, this Court also said that provisions of the new Act have to be interpreted and companystrued independently and that in fact reference to old Act may actually lead to the misconstruction of the provisions of the new Act. The Court said that it will be more relevant, while companystruing the provisions of the new Act, to refer to the UNCITRAL Model Law rather than the old Act. In the case of Kuwait Minister of Public Works v. Sir Frederick Snow and Partners, 1984 1 ALL ER 733 HL the award was given before Kuwait became party to the New York Convention recognised by Order in Council in England. House of Lords held that though a foreign award companyld be enforced in England under the U.K. Arbitration Act, 1975 as when the proceedings for enforcement of the award were initiated in England Kuwait had become party to the Convention. It negatived the companytention that on the date the award was given Kuwait was number party to the New York Convention. In Pepper v. Hart, 1993 1 All. ER 42 House of Lords for the first time accepted the principle that Judges companyld refer to the Parliamentary debates in order to ascertain the meaning of an Act of Parliament. Lord Griffiths said at page 50 The days have long passed when the companyrts adopted a strict companystructionist view of interpretation which required them to adopt the literal meaning of the language. The companyrts number adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted. But then if the companystruction of the new Act leads to inconvenient and unjust results, the companycept of purposive approach has to be shed. Multiple and companyplex problems would arise if the award given under the old Act is said to be enforced under the new Act, Both the Acts are vastly different to each other. It has been rightly companytended that when arbitration proceedings are held under the old Act, the parties and the arbitrator keep in view the provisions of that Act for the enforcement of the award. As numbered above, under the old Act, there is numberrequirement for the arbitrator to give reasons for the award. That is number mandatory under the new Act. Section 27 of the old Act provides that arbitrator or umpire may, if they think fit, make an interim award, unless of companyrse different intention appears from the arbitration agreement. Interim award is also an award and can be enforced in the same way as the final award. It would certainly be a paradoxical situation if for the interim award, though given after the companying into force of the new Act, it would still be the old Act which would apply and for the final award, it would be the new Act. Yet another instance would be when under Section 13 of the old Act, the arbitrators or umpire have power to state a special case for the opinion of the Court on any question of law involved in the proceedings. Under subsection 3 of Section 14 of the old Act when the Court pronounces its opinion thereon such opinion shall be added to and shall form part of the award. From this part of the award numberappeal is maintainable under Section 39 of the old Act. There is numbersuch provision under the new Act. In Sohan Lal Ors. v. Amin Chand and Sons Ors., 1974 1 SCR 453. This Court was companysidering the powers of arbitrator under Section 13 of the old Act. Clause b of Section 13 provided that arbitrators or umpire shall have power to state a special case for the opinion of the companyrt on any question of law involved, or state the award, wholly or in part, in the form of a special case of such question for the opinion of the companyrt. Section 14 of the old Act provides for the award to be signed and filed. Under sub-section 3 of Section 14 where the arbitrators or umpire state a special case under clause b of Section 13, the companyrt, after giving numberice to the parties and hearing them, shall pronounce its opinion thereon and such opinion shall be added to, and shall form part of, the award. This Court said We do number think that an opinion given under the first part of s. 13 b should be added to and form part of the award. The reason why the opinion given under the latter part of s. 13 b should be added to and becomes part of the award is because the arbitrators have stated the award wholly or in part in the form of a special case of such question for the opinion of the companyrt. This view is further strengthened by the circumstance that under s. 39 l ii , an appeal is provided only against an order on an award stated in the form of a special case. The reason why an appeal is provided for in such a case is that the opinion of the companyrt has to be added to and form part of the award and it therefore becomes a decision of the companyrt, numberwithstanding the fact that it is incorporated in the award. There is numberprovision for an appeal against an opinion given by the companyrt on a special case stated to the companyrt under the first part of s.13 b or against the decision to state a special case for the opinion of the companyrt for the reason that the opinion is number a decision. Nor is it to be incorporated in the award. If, as a matter of fact, the opinion given by the companyrt on a special case stated under first part of s,13 b is binding on the arbitrators and has to be incorporated in the award, there was numberreason why the legislature should number have provided for an appeal against the opinion or against the reference which led to the opinion. The scheme of the Act shows that the legislature wanted to provide for an appeal only when there is to be a decision by the companyrt binding on the parties, number when it tenders an opinion which is number binding on the arbitrators and which is number to be incorporated in the award. It might be that the arbitrator may choose to act upon the opinion. But that is number for the reason that it is a binding determination or a decision. We have, therefore, numberhesitation in holding that the appeals are incompetent. Section 85 2 a is the saving clause. It exempts the old Act from companyplete obliteration so far as pending arbitration proceedings are companycerned. That would include saving of whole of the old Act uptill the time of the enforcement of the award. This Section 85 2 a prevents the accrued right under the old Act from being affected. Saving provision preserves the existing right accrued under the old Act. There is a presumption that Legislature does number intend to limit or take away vested rights unless the language clearly points to the companytrary. It is companyrect that the new Act is a remedial statute and, therefore, Section 85 2 a calls for strict companystruction, it being a repealing provision. But then as stated above where one interpretation would produce an unjust or an inconvenient result and another would number have those effects, there is then also a presumption in favour of the latter. Enforcement of the award, therefore, has to be examined on the touchstone of the proceedings held under the old Act. Various decisions have been cited before us to show as to what is a mere right and what is right accrued or acquired. We have to examine this question with reference to the provisions of Section 6 of the General Clauses Act if it companyld be said that when the arbitral proceedings have companymenced under the old Act, a party has acquired a right to have the award given thereafter enforced under the old Act. The question that arises for companysideration is if a right has accrued to the party or it is merely an inchoate right. The three cases referred to, namely, Abbott v. The Minister for Lands, 1895 AC 425 PC Hungerfort Investment Trust Ltd. v. Haridas Mundhra Ors., 1972 3 SCR 690 and AC, Bhatia Ors. v. Union of India Anr., 1995 1 SCC 104 show that something more is required for vested right to accrue. Right did exist but then numberhing was done to show that any act was done or advantage taken of the enactment under which the right existed till it was repealed. An Act gave the right and the new Act which repealed the old Act took away that right. Mere right to take advantage of the provision of an Act is number a right accrued. In I.T. Commissioner v. Shah Sadiq Sons, 1987 3 SCC 516 this Court said that right which had accrued and had become vested companytinued to be capable of being enforced numberwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expresslv or by necessary implication. In the case of Bansidhar Ors. v. State of Rajasthan Ors.,1989 2 SCC 557 this Court had said that what is unaffected by the repeal is a right acquired or accrued under the repealed statute and number a mere hope or expectation of acquiring a right or liberty to apply for a right. In the case of Lalji Raja Sons v. Firm Hansraj Nathuram, 1971 1 SCC 721 this Court had said that a provision to preserve the right accrued under a repealed Act was number intended to preserve the abstract rights companyferred by the repealed Act. It only applies to specific rights given to an individual upon happening of one or the other of the events specified in statute. We think the observations of Lord Morris in Director of Public Works v. Ho Po Sang 1961 2 ALL E.R. 721 are quite apt which have been quoted elsewhere in the judgment. In M.S. Shivanda v. K.S.R.T.C., 1980 1 SCC 149 this Court again said that if the right created by the statute is of an enduring character and has vested in the person, the right cannot be taken away because the statute by which it was created has expired. In Hemilton Gell v. white, 1922 2 KB 422 Court of Appeal referred to the decision of the House of Lords in Abbott v. Minister for Lands, 1895 A.C. 425. In the case before it, the Court said that under the old Act the Agricultural Holdings Act, 1908 which was repealed by the Agricultural Holdings Act, 1914 necessary event had happened under which the tenant acquired a right which would accrue when he was quitting his holding to receive companypensation from the landlord. The event which occurred was the numberice by the landlord to quit to the tenant in view of a sale of the holding. While Section 11 of the 1908 Act treated this as unreasonable disturbance to the tenant entitling him to companypensation, the latter Act of 1914 repealed Section 11, The Court held that in spite of the repeal of Section 11 tenant had acquired right to claim companypensation inasmuch as numberice to quit was given to him when Section 11 of the old Act was in operation. In Gajraj Singh Ors, v. State Transport Appellate Tribunal Ors., 1997 l SCC 650 this Court said that some positive Act is required to be done for the right to accrue under enactment which is repealed. In this case reference was made to a decision of this Court in Gujarat Electricity Board v. Shantilal R. Desai, AIR 1969 SC 239 1969 1 SCR 580 where the Court had pointed out that before Section 71 of the Electricity Supply Act, 1948 was amended, the appellant had issued a numberice under Section 7 thereof, exercising the option to purchase the undertaking. It was held that a right to purchase the electrical undertaking, which had accrued to the Electricity Board, was saved by Section 6 of the General Clauses Act. In the case of G. Ekambarappa Ors. v. Excess Profits Tax Officer, Bellary, 1967 3 SCR 864 there was repeal of an enactment levying tax. No assessment had been made by the time the Act was repealed and there companyld, therefore, be numberliability. Nevertheless, this Court said that liability to tax arose immediately at the end of the accounting period when the Act was in force though the liability had number been quantified by assessment proceedings. The Court upheld validity of the numberice for assessment of proceedings after the repeal of the Act. Principles enunciated in the judgments show as to when a right accrues to a party under the repealed Act. It is number necessary that for the right to accrue that legal proceedings must be pending when the new Act companyes into force. To have the award enforced when arbitral proceedings companymenced under the old Act under that very Act is certainly an accrued right. Consequences for the parties against whom award is given after arbitral proceedings have been held under the old Act though given after the companying into force of the new Act, would be quite grave if it is debarred from challenging the award under the provisions of the old Act. Structure of both the Acts is different. When arbitral proceedings companymenced under the old Act it would be in the mind of everybody, i.e., arbitrators and the parties that the award given should number fall foul of Sections 30 and 32 of the old Act. Nobody at that time companyld have thought that Section 30 of the old Act companyld be substituted by Section 34 of the new Act. As a matter of fact appellant Thyssen in Civil Appeal No. 6036/98 itself understood that the old Act would apply when it approached the High Court under Sections 14 and 17 of the old Act for making the award rule of the Court. It was only later on that it changed the stand and number took the position that new Act would apply and for that purpose filed an application for execution of the award. By that time limitation to set aside the award under the new Act had elapsed. Appellant itself led the respondent SAIL in believing that the old Act would apply. SAIL had filed objections to the award under Section 30 of the old Act after numberice for filing of the award was received by it on the application filed by the Thyssen under Sections 14 and 17 of the old Act. We have been informed that numerous such matters are pending all over the companyntry where the award in similar circumstances is sought to be enforced or set aside under the provisions of the old Act. We, therefore, cannot adopt a companystruction which would lead to such anomalous situations where the party seeking to have the award set aside finds himself without any remedy. We are, therefore, of the opinion that it would be the provisions of the old Act that would apply to the enforcement of the award in the case of Civil Appeal No. 6036 of 1998. Any other companystruction on the Section 85 2 a would only lead to the companyfusion and hardship. This companystruction put by us is companysistent with the wording of Section 85 2 a using the terms provision and in relation to arbitral proceedings which would mean that once the arbitral proceedings companymenced under the old Act it would be the old Act which would apply for enforcing the award as well. Because of the view of Section 85 2 a of the new Act which we have taken, it is number necessary for us to companysider difference in the repealing provisions as companytained in Section 48 of the old Act and Section 85 of the new Act. We may, however, numbere that under Section 48 of the old Act companycept is of reference while under the new Act it is companymencement. Section 2 c of the old Act defines reference. Then under Section 48 the word used is to, and under Section 85 2 a the expression is in relation to. It, therefore, also appears that it is number quite relevant to companysider the provision of Section 48 of the old Act to interpret Section 85 2 a . In Hoosein Kasam Dada India Ltd. v. The State of Madhya Pradesh and Others, 1953 SCR 987, this Court said that pre-existing right of appeal is number destroyed by the amendment if the amendment is number retrospective by express words or necessary intendment. The fact that the pre-existing right of appeal companytinues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the companytinuation of that right. In this case, law had changed and the appellate authority companyld exercise jurisdiction only if the appeal was ac-companied by the deposit of the assessed tax when before the amendment of the provision it only provided for deposit of admitted tax. The Court said that any requirement for deposit of the assessed tax overlooks the fact of existence of the old law for the purpose of supporting the pre-existing right where appeal companyld be filed only on depositing the admitted amount of tax. The law interpreted by this Court in this judgment, it seems, is to what Civil Procedure Code Amendment Act provided by clause m of Section 97 of the Code of Civil Procedure Amendment Act. Parties can agree to the applicability of the new Act even before the new Act companyes into force and when the old Act is still holding the field. There is numberhing in the language of Section 85 2 a which bars the parties from so agreeing. There is, however, a bar that they cannot agree to the applicability of the old Act after the new Act has companye into force when arbitral proceedings under the old Act have number companymenced though the arbitral agreement was under the old Act. Arbitration clause in the companytract in the case of Rani Constructions Civil Appeal 61 of 1999 uses the expression for the time being in force meaning thereby that provision of that Act would apply to the arbitration proceedings which will be in force at the relevant time when arbitration proceedings are held. We have been referred to two decisions - one of Bombay High Court and the other of Madhya Pradesh High Court on the interpretation of the expression for the time being in force and we agree with them that the expression aforementioned number only refers to the law in force at the time the arbitration agreement was entered into but also to any law that may be in force for the companyduct of arbitration proceedings, which would also include the enforcement of the award as well. Expression unless otherwise agreed as appearing in Section 85 2 a of the new Act would clearly apply in the case of Rani Construction in Civil Appeal No. 61 of 1999. Parties were clear in their minds that it would be the old Act or any statutory modification or re-enactment of that Act which would govern the arbitration. We accept the submission of the appellant Rani Construction that parties companyld anticipate that the new enactment may companye into operation at the time the disputes arise. We have seen Section 28 of the Contract Act. It is difficult for us to companyprehend that arbitration agreement companyld be said to be in restraint of legal proceedings. There is numbersubstance in the submission of respondent that parties companyld number have agreed to the application of the new Act till they knew the provisions thereof and that would mean that any such agreement as mentioned in the arbitration clause companyld be entered into only after the new Act had companye into force. When the agreement uses the expressions unless otherwise agreed and law in force it does give option to the parties to agree that new Act would apply to the pending arbitration proceedings. That agreement can be entered into even before the new Act companyes into force and it cannot be said that agreement has to be entered into only after companying into force of the new Act. Mr. Desai had referred to a decision of the Bombay High Court Goa Bench , rendered by single Judge in Reshma Constructions v. State of Goa, 1999 1 MLJ 462. In that case arbitration clause in the companytract provided as under Subject as aforesaid, the provisions of the Arbitration Act, 1940 or any statutory modification or reenactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause. The Court held that these terms in the clause disclosed that the parties had agreed to be governed by the law which was in force at the time of execution of the arbitration agreement as well as by any further statutory changes that may be brought about in such law. This is how the High Court companysidered the issue before it Considering the scheme of the Act, harmonious reading of the said provision companytained in sub-section 2 of Sec. 85 thereof would disclose that the reference otherwise agreed necessarily refers to the intention of the parties as regards the procedure to be followed in the matter of arbitration proceedings and number to the time factor as regards execution of the agreements. It provides that though the law provides that the provisions of the old Act would companytinue to apply to the pending proceedings by virtue of the said saving clause in Sec. 85, it simultaneously provides that the parties can agree to the companytrary. Such a provision leaving it to the discretion of the parties to the proceedings to decide about the procedure to be followed - other in terms of the new Act or the old Act - is certainly in companysonance with the scheme of the Act, whereunder most of the provisions of the new Act, the procedure regarding various stages of the arbitration proceedings is made subject to the agreement to the companytrary between the parties, thereby giving ample freedom to the parties to decide about the procedure to be followed in such proceedings being so, it is but natural that the legislature in its wisdom has left it to the option of the parties in the pending proceedings to choose the procedure for such pending proceedings. The reference otherwise agreed by the parties in Sec. 85 2 c of the new Act, therefore, would include an agreement already entered into between the parties even prior to enforcement of the new Act as also the agreement entered into after enforcement of the new Act. Such a companyclusion is but natural since the expression otherwise agreed do number refer to the time factor but refers to the intention of the parties regarding applicability of the provisions of the new or old Act. We agree with the High Court on interpretation put to the arbitration clause in the companytract. Section 28 of the Contract Act companytains provision regarding agreements in the restraint of legal proceedings. Exception 1 to Section 28 of the Contract Act does number render illegal a companytract by which the parties agree that any future dispute shall be referred to arbitration. That being so parties can also agree that the provisions of the arbitration law existing at that time would apply to the arbitral proceedings. It is number necessary for the parties to know what law will be in force at the time of the companyduct of arbitration proceedings. They can always agree that provisions that are in force at the relevant time would apply. In this view of the matter, if the parties have agreed that at the relevant time provisions of law as existing at that time would apply, there cannot be any objection to that. Thus companystruing the clause 25, in Rani Constructions CA 61/99 new Act will apply. Foreign Awards Act gives the party right to enforce the foreign award under that Act. But before that right is exercised Foreign Awards Act has been repealed. It cannot, therefore, be said that any right had accrued to the party for him to claim to enforce the foreign award under the Foreign Awards Act. After the repeal of the Foreign Awards Act a foreign award can number be enforced under the new Act on the basis of the provisions companytained in Part II of the new Act depending whether it is a New York Convention Award or Geneva Convention Award. It is irrespective of the fact when the arbitral proceedings companymenced in a foreign jurisdiction. Since numberright has accrued Section 6 of the General Clauses Act would number apply. In the very natural of the provisions of Foreign Awards Act it is number possible to agree to the submissions that Section 85 2 a of the new Act would keep that Act alive for the purpose of enforcement of a foreign award given after the date of companymencement of the new Act though arbitral proceedings in foreign land had companymenced prior to that. It is companyrect that Section 85 2 a uses the words the said enactments which would include all the three Acts, i.e., the old Act, Foreign Awards Act and the Arbitration Protocol and Convention Act, 1937. Foreign Awards Act and even the 1937 Act companytain provisions only for the enforcement of the foreign award and number for the arbitral proceedings. Arbitral proceedings and enforcement of the award are two separate stages in the whole process of arbitration. When the Foreign Awards Act does number companytain any provision for arbitral proceedings it is difficult to agree to the argument that in spite of that the applicability of the Foreign Awards Act is saved by virtue of Section 85 2 a . As a matter of fact if we examine the provisions of Foreign Awards Act and the new Act there is number much difference for the enforcement of the foreign award. Under the Foreign Awards Act when the companyrt is satisfied that the foreign award is enforceable under that Act the companyrt shall order the award to be filed and shall proceed to pronounce judgment accordingly and upon the judgment so pronounced a decree shall follow. Sections 7 and 8 of the Foreign Awards Act respectively prescribe the companyditions for enforcement of a foreign award and the evidence to be produced by the party applying for its enforcement. Definition of foreign award is same in both the enactments. Sections 48 and 47 of the new Act companyrespond to Sections 7 and 8 respectively of the Foreign Awards Act. While Section 49 of the new Act states that where the companyrt is satisfied that the foreign award is enforceable under this Chapter Chapter I, Part II, relating to New York Convention Awards the award is deemed to be decree of that companyrt. The only difference, therefore, appears to be that while under the Foreign Awards Act a decree follows, under the new Act foreign award is already stamped as the decree. Thus if provisions of the Foreign Awards Act and the new Act relating to enforcement of the foreign award arc juxtaposed there would appear to be hardly any difference. Again a bare reading of the Foreign Awards Act and the Arbitration Protocol and Convention Act, 1937 would show that these two enactments are companycerned only with recognition and enforcement of the foreign awards and do number companytain provisions for the companyduct of arbitral proceedings which would, of necessity, have taken place in a foreign companyntry. The provisions of Section 85 2 a in so far these apply to the Foreign Awards Act and 1937 Act, would appear to be quite superfluous. Literal interpretation would render Section 85 2 a unworkable. Section 85 2 a provides for a dividing line dependent on companymencement of arbitral proceedings which expression would necessarily refer to Section 2110 of the new Act. This Court has relied on this Section as to when arbitral proceedings companymence in the case of Shettys Construction Co. P. Ltd. v. Konkan Railway Construction, 1998 5 SCC 599. Section 2 2 read with Section 2 7 and Section 21 falling in Part-I of the new Act make it clear that 10. 21. Commencement of arbitral proceedings. - Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute companymence on the date on which a request for that dispute to be referred to arbitration is received by the respondent. 11. 2 2 This Part shall apply where the place of arbitration is in India. 12. 2 7 An arbitral award made under this Part shall be companysidered as a domestic award. these provisions would apply when the place of arbitration is in India, i.e., only in domestic proceedings. There is numbercorresponding provision anywhere in the new Act with reference to foreign arbitral proceedings to hold as to what is to be treated as date of companymencement in those foreign proceedings. We would, therefore, hold that on proper companystruction of Section 85 2 a the provision of this subsection must be companyfined to the old Act only. Once having held so it companyld be said that Section 6 of the General Clauses Act would companye into play and foreign award would be enforced under the Foreign Awards Act. But then it is quite apparent that a different intention does appear that there is numberright that companyld be said to have been acquired by a party when arbitral proceedings are held in a place resulting in a foreign award to have that award enforced under the Foreign Awards Act, We, therefore, hold that the award given on September 24, 1997 in the case of Thyssen Stahlunion GMBH v. Steel Authority of India Ltd., Civil Appeal No. 6036 of 1998 when the arbitral proceedings companymenced before the Arbitration and Conciliation Act, 1996 came into force on 22nd August 1996, would be enforced under the provisions of Arbitration Act, 1940.

C.LAHOTI, J. In exercise of the powers companyferred by sub-Section 5 of Section 8 of the Central Sales Tax Act, 1956, the Government of Madhya Pradesh issued a numberification No.F.No.A3-41-81 31 -ST-V Dated the 29th June, 1982 allowing exemption from payment of tax to certain dealers subject to satisfying the requirements of the numberification. The relevant part of the numberification reads as under- NOTIFICATION No.A3-41-81 31 -ST-V Dated the 29th June, 1982. Whereas, the State Government is satisfied that it is necessary so to do in the public interest Now, therefore, in exercise of the powers companyferred by sub-section 5 of Section 8 of the Central Sales Tax Act, 1956 No.74 of 1956 , the State Government hereby directs that numbertax under the said Act shall be payable with effect from the Ist July, 1982, by the dealers specified in companyumn 1 of the Schedule below, who have set up industry in any of the districts of Madhya Pradesh specified in the annexure to this numberification in respect of sales in the companyrse of interstate trade or companymerce of goods produced manufactured by them, for the period specified in companyumn 2 , subject to the restrictions and companyditions specified in companyumn 3 of the said Schedule- SCHEDULE Class of dealers Period Restrictions and companyditions subject to which exemption has been granted. 1 2 3 xxx xxx xxx xxx Dealers who - a are registered in the case The dealer specified under the Madhya of an industry in companyumn 1 shall Pradesh General located in a companytinue to furnish Sales Tax Act, district the prescribed 1958 No.2 of 1959 specified in returns under the and the Central Sales category Aof Central Sales Tax Tax Act, 1956 No. Part-II of the Act,1956 No.74 to 1956 . Annexure, up to 1956 , and shall the date on produce before the which period assessing authority of 3 years, at the time of his beginning from assessment a certithe date of ficate issued by companymencement the Industries of production, Commissioner Madhya expires. Pradesh, or any officer authorised by him for the purpose,certifying that such dealer is eligible to claim the exemption from payment of tax and that he has opted for the scheme of exemption from payment of tax under the Madhya Pradesh General Sales Tax Act, 1958 No.2 of 1959 Under the separate Revenue Department Notification No. A-3-41-81 35 -ST-V dated 23.10.81. xxx xxx xxx xxx The respondent, a public limited companypany, is a new industrial unit engaged in manufacture and sale of paper at Champa in the backward tribal area of District Bilaspur in the State of Madhya Pradesh. It is number disputed that the respondent industrial unit satisfies the requirements of Columns 2 and 3 of the numberification. It is also number disputed that the respondent was registered as a dealer under the M.P. General Sales Tax Act, 1958 as also under Section 7 2 of the Central Sales Tax Act, 1956. The registration under the Central Sales Tax Act is dated 12.11.1981. Having taken into companysideration the two sales tax registrations as dealer under the two Acts i.e., the State and the Central Acts, the Directorate of Industries issued a certificate of eligibility dated 19.2.1985 for exemption from payment of sales tax whereby it was certified that the respondent was a new unit having gone into production on 10.1.1984 i.e. after 1.4.1981 and as such eligible for exemption from payment of sales tax. It was also certified that the unit being located in District Bilaspur - category Backward A, was eligible for exemption for the period upto 9.1.1987. The Assistant Commissioner of Sales Tax formed an opinion that for the purpose of claiming benefit of the exemption numberification a dealer registered under the State Act has also to be registered under sub-section 1 of Section 7 of the Central Sales Tax Act but the respondent was registered under sub-Section 2 and number sub-Section 1 of Section 7 of the Central Sales Tax Act and therefore was number entitled to the benefit of the exemption numberification dated 29.6.1982. The Appellate Deputy Commissioner agreed with the Assistant Commissioner. In an appeal preferred by the respondent the Board of Revenue reversed the finding of the authorities below and held that on the basis of the certificate of eligibility issued by the Directorate of Industries, the respondent was entitled to exemption from payment of sales tax and therefore the assessment and companysequential penalty were unwarranted. At the instance of the Revenue the following question was stated for the opinion of the High Court under Section 44 of the M.P. General Sales Tax Act- Whether on the facts and circumstances of the case, the Tribunal was justified in holding that the dealer is eligible to avail of the exemption under Separate Revenue Department Notification No. A-3-41-81- 31 -ST-V, dated 29.6.82 in respect of the Inter State sale of goods manufactured by him by virtue of his holding an eligibility certificate in fulfilment of one of the companyditions laid down in the said numberification for eligibility, although he was number holding a Registration Certificate under sub-section 1 of Section 7 of the Central Sales Tax Act, 1956. The High Court of Madhya Pradesh has answered the question in favour of the respondent-assessee forming an opinion that the eligibility certificate issued by the Directorate of Industries was companyclusive and binding on the assessing authorities and they companyld number go into the question whether the respondent-assessee was eligible for the benefit of exemption inspite of his holding the eligibility certificate by entering into the question of the respondents registration whether it was under sub-Section 1 or 2 of Section 7 of the Central Sales Tax Act. Feeling aggrieved the Revenue has companye up in appeal before this Court. It was submitted by the learned companynsel for the appellant that on a full reading of the numberification and placing a reasonable companystruction thereon the expression - registered under the Central Sales Tax, 1956, as employed in the first companyumn of the numberification should be understood as meaning the registration under sub- Section 1 of Section 7 of the Central Sales Tax Act registration under sub-Section 2 of Section 7 of the Central Sales Tax Act is number companyered by the expression and is of numberrelevance for the purpose of claiming exemption under the numberification. Section 7 of the Central Sales Tax Act relevant part thereof reads as under Registration of dealers - Every dealer liable to pay tax under this Act shall, within such time as may be prescribed for the purpose, make an application for registration under this Act to such authority in the appropriate State as the Central Government may, by general or special order, specify, and every such application shall companytain such particulars as may be prescribed. Any dealer liable to pay tax under the sales tax law of the appropriate State, or where there is numbersuch law in force in the appropriate State or any part thereof, any dealer having a place of business in that State or part, as the case may be, may, numberwithstanding that he is number liable to pay tax under this Act, apply for registration under this Act to the authority referred to in sub-section 1 , and every such application shall companytain such particulars as may be prescribed. Explanation - For the purpose of this sub-section, a dealer shall be deemed to be liable to pay tax under the sales tax law of the appropriate state numberwithstanding that under such law a sale or purchase made by him is exempt from tax or a refund or a rebate of tax is admissible in respect thereof. xxx xxx xxx A bare perusal of the above quoted provision goes to show that every dealer liable to pay tax under the Central Sales Tax Act shall secure a registration under sub-Section 1 of Section 7. Such dealers as have a place of business in a State and are number liable to pay tax under the Central Act may still have themselves registered under sub-Section 2 of Section 7 of the Central Sales Tax Act if i they are dealers liable to pay tax under the Sales Tax law of the appropriate State numberwithstanding the fact that the sales or purchases made by them are exempt from tax or a refund or a rebate of tax is admissible in respect thereof , or ii there is numberState Legislation attracting liability to pay tax on such dealers. Such a prayer for registration shall be made to the same authority who grants registration under sub Section 1 . Registration under sub-section 1 is companypulsory registration under sub-section 2 is optional. For the purpose of securing a registration under sub-section 2 abovesaid the dealer need number necessarily be liable to pay any amount of tax. The learned companynsel for the appellant submitted that the dealers liable to pay tax under the Central Act have been dealt with only under sub-section 1 of Section 7 sub-section 2 refers to registration under the sales-tax law of the appropriate State if there be one in force and in as much as the relevant numberification dated 29.6.1982 deals with exemption from payment of tax under the Central Act, it is necessary that the dealer should have been registered under sub-section 1 of Section 7 of the Act. However, we find numbermerit in the companytention. The language of the numberification is plain and simple. It admits of numberambiguity. The requirement of Column 1 is satisfied if the dealer is registered under the State Act and the Central Act-both it is immaterial whether the registration under the Central Act is under sub-section 1 or sub-section 2 of Section 7. A registration under sub-section 2 of Section 7 is certainly a registration under the Central Sales Tax Act. This is clear from the language of subsection 2 of Section 7 which speaks, inter alia, - may, numberwithstanding that he is number liable to pay tax under this Act, apply for registration under this Act to the authority referred to in sub-section 1 The learned companynsel for the respondent-assessee has rightly pointed out that the certificate of registration valid from 12.11.1981 until cancelled was secured by the respondent though on the date of registration it was number liable to pay tax under the Central Act. Liability to pay tax arose on companymencement of production and business on 10.1.1984 whereafter exemption from payment of sales-tax was claimed under the numberification. Without regard to the fact whether the assessing authority was entitled to go behind the certificate of eligibility issued by the Directorate of Industries, the entitlement of the respondent for exemption from payment of tax under the numberification was clearly made out as the requirements of Column 1 of the numberification were also satisfied.

Leave granted. Heard Mr. S.K. Dholakia, the learned senior companynsel appearing fro the appellant State of Gujarat and Mr. Sushil Kumar, the learned senior companynsel appearing as amicus curiae to assist the Court in this matter. Certain observations made by the Gujarat High Court in disposing of Criminal Miscellaneous Application No.2941 in Criminal Appeal No.375/95 The State of Gujarat Vs. Ratilal Laljibhai Tandol and Anr. are impugned in this appeal by the State of Gujarat. It has been submitted by Mr. Dholakia that although on the proposal initiated by the public Prosecutor for preferring appeal against order of acquittal the State Government takes the final decision, the State Government has felt that the opinion of the District Magistrate being in overall charge of the district is necessary for taking appropriate decision by State Government. Our attention has been drawn to the circular dated 23rd July, 1979 issued by the Legal Department of the Government of Gujarat being Circular No. Cri Misc./5/78/24289/A2. It has been indicated in the said circular that the District Magistrate who is holding an important position in the District can reflect on several circumstances indicated in the circular in his report so that the Government will have the benefit of the experience and knowledge of the person who is likely to be most companyversant with the local companyditions and circumstances, which facts companyld number be shown or suggested by the Public Prosecutor or the Assistant Public Prosecutor. Mr. Dholakia has submitted that in view of such perception of the State Government, it as decided that the proposal to prefer appeal against the order of acquittal should be routed through the District Magistrate. In the impugned observations, the High Court has given a direction that hence forward numberproposal should be routed through the District Magistrate. Such direction of the High Court was number appropriate even though the High Court had anxiety that there should number be delay in preferring appeal in appropriate case. Mr. Sushil Kumar the learned senior companynsel appearing as amicus curaie has however submitted under the Code of Criminal Procedure, the District Magistrate does number companye in the picture in the decision making process regarding filing an appeal against the order of acquittal. He has submitted that here is numberdifficulty in getting valued opinion from any responsible officer of the State Government including the District Magistrate but for such opinion proposal to prefer appeal initiated by the Public Prosecutor is number required t be route through the District Magistrate Rule 50 of Law Officers Rules of 1939 which is admittedly being followed even today indicates that the proposal of the Public Prosecutor is to be companysidered by the State Government and final decision is to be taken by the State Government. Such Rule is also in companyformity with the Code of Criminal procedure. Therefore, the High Court is justified in indicating that under the law, the proposal is number required to be routed through the District Magistrate. mr. Sushil Kumar has also submitted that the High Court has indicated its companycern flowing from the experience revealed from the large number of cases companying before the High Court that because of the procedural wrangles unnecessary delay is often companymitted for which some of the appeals are likely to be dismissed on the score of bar of limitation because in some cases inordinate delay may number be properly explained. Mr. Dholakia has however submitted that the High Court should have refrained from interfering with the policy decision of the State Government by indicating that the role of the District Magistrate is to be bye passed altogether. Such direction of the High Court will virtually deprive the State Government to get the valued opinion of the District Magistrate for companyent reasons. After taking into companysideration the submissions of the learned companynsel it appears to us that the High Court, in its anxiety to ensure that the appeals are preferred within reasonable time and avoidable delay does number occur in processing the proposal to prefer appeal, has made the impugned observations. Although we appreciate the anxiety of High Court that the appeal should be presented within reasonable time and procedural wrangles should be avoided so that unnecessary and avoidable delay do number take place, it appears to us that some of the observations of the High Court are quite strong and should have been avoided. We, therefore, modify the observations made by the High Court by deleting the directions regarding the liability of the Public Prosecutor in the event of delay attributable to Public Prosecutor. Such deletion is made by hoping that the Public Prosecutors will be alive to their duties and responsibilities and the State Government will number fail to take appropriate action against the erring Public Prosecutors. In modification of the observation of the High Court it is also directed that the companycerned Public Prosecutor will initiate the proposal for preferring appeal against the order of acquittal and send such proposal directly to the Law Department of the State of Gujarat.

SLP Nos. 1080 of 1991, 1096 of 1991 862 of 1992 All these three special leave petitions arise out of interim orders passed by the High Court. The writ petitions have been admitted to hearing and are pending adjudication by the High Court. We are number inclined to interfere with the interim order passed by the High Court at this stage. It will be open to the petitioners herein to move the High Court for early hearing of their writ petitions. The special leave petitions will stand disposed of accordingly. Civil Appeal Nos. 2828, 4279 and 3163 of 1989 and SLP No. 7054 of 1989 Special leave granted in SLP No. 7054 of 1989 The question which arises for our determination in this group of appeals is whether the decision rendered by the High Court in the case of Husen Zafar Sheikh which has given rise to Civil Appeal No. 2828 of 1989 and which was followed in the other cases which have given rise to the Civil Appeal Nos. 4279 and 3163 of 1989 and Civil Appeal arising from SLP No. 7054 of 1989 is sustainable in law having regard to this Courts decision in Mehmood Alam Tariq v. State of Rajasthan. The question arises in the backdrop of the following facts. Selection of police companystables for the Police Training Course at Nasik for the post of Sub-Inspectors was made by a Selection Committee. There are three streams, namely, i direct recruitment by the State Government through the Maharashtra Public Service Commission ii selection from amongst qualified head companystables and iii selection from amongst police companystables. We are companycerned with the last stream only. The process of selection was through written as well as an oral test. The written test companyprised three papers, each carrying 100 marks, namely - Essay, General Knowledge, and Law, 50 marks were reserved for outdoor test and 50 marks for record of service, 100 marks were reserved for interview. The candidate was required to secure a minimum of 45 per cent marks for each written paper to qualify for outdoor test and interview. Insofar as the interview is companycerned, a candidate to be successful had to secure a minimum of 40 per cent marks. The aggregate marks that he was required to secure for being declared successful was 50 per cent. We are number dealing with candidates belonging to the first and the second category but only with candidates belonging to the third category of police companystables. They admittedly had failed to secure a minimum of 40 per cent marks in the interview and therefore, they were number selected for training. 1 1988 3 SCC 241 1988 SCC LS 757 1988 7 ATC 741 1988 Supp 1 SCR 379 The High Court held in their favour in Civil Appeal No. 2828 of 1989 on two companynts 1 that the 40 per cent requirement for passing the interview test was excessive and therefore, invalid and 2 the Selection Committee which ought to have companyprised four members, actually companyprised three and hence the entire selection was vitiated. The second ground companycerning the companystitution of Selection Committee or Interview Board is number a ground on which the High Court has held in favour of the respondents of Civil Appeal No. 3163 of 1989 and Civil Appeal No arising out of SLP No. 7054 of 1989 . In those two cases the High Court held against the State on the first ground, namely, that the rule requiring the candidate to obtain a minimum of 40 per cent marks at the interview was invalid. In Civil Appeal No. 4279 of 1989, the High Court struck down the selection on both the grounds following the decision in Husens case. When the States appeal against the decision in Husens case came up -or admission before the learned Vacation Judge of this Court on May 11, 1989, the learned Vacation Judge after numbericing the two points on which the High Court held against the State, admitted the appeal insofar as the first point is companycerned, on the companytention that the High Courts view was unsustainable in view of this Courts decision in Mehmood Alam Tariq case. However, in regard to the second companytention this Court felt that the State had numberanswer and, therefore, the learned Vacation Judge did number see any reason to interfere with the relief granted to Husen and directed that his case will be governed by the decision of the High Court. Since it was stated at the Bar that a large number of petitions were pending in which the first ground was raised, special leave was granted to companysider the companyrectness of the High Courts view on the first ground. Before we proceed to answer the companytention in regard to the first ground, we must state that the three respondents in Civil Appeal No. 4279 of 1989 sail in the same boat as Husen inasmuch as in their cases also, one of the grounds raised before the High Court was in regard to the companystitution of the Committee. They must, therefore, get the same benefit which Husen got by the order of May 11, 1989. Although Mr Dholakia made an attempt to persuade us to re-examine the matter on facts in regard to the companystitution of the Committee, we have declined to do so because it is a question of fact and is sought to be raised for the first time before this Court. In their cases also, therefore, we see numberreason to interfere with the relief granted to them and their cases will also be governed by the judgment of the High Court. We number proceed to answer the main companytention, that is, the first point on which Civil Appeal No. 2828 of 1989 was admitted by the order of May 11, 1989. The High Court after referring to the decision in Ajay Hasia v. Khalid Mujib2 and Peeriakaruppan v. State of Tamil Nadu3 observed as under A percentage of the aggregate marks may be prescribed for clearing the test. Similarly, the aggregate marks may be taken into account for the purpose of a merit list since the available seats may be limited. However, companypulsory minimum passing marks in an interview by which a candidate who is otherwise successful may be disallowed from admission cannot be legally permitted. Such interview cannot 2 1981 1 SCC 722 1981 SCC LS 258 3 1971 1 SCC 38 be accepted as a supplemental test but has the characteristics of an inclusive act which is legally impermissible. It is the companyrectness of this view which is challenged in this group of appeals. In Mehmood Alam Tariql the question which this Court was required to companysider was a provision in the Rajasthan State Rules which provided that candidates should secure a minimum of 33 per cent marks in the viva voce test. Those who failed to secure the minimum marks challenged the validity of the rules in the High Court. The High Court declared the provision as unconstitutional. The matter was brought to this Court by way of an appeal by special leave. It was urged by the selected candidates whose selection was quashed that the High Court fell into a serious error in importing the principle relating to the question whether setting apart of an excessive or disproportionately high percentage of marks for viva voce in companyparison with the marks of a written examination would be arbitrary. However, urged companynsel, the prescription of minimum qualifying marks for the viva voce test would number violate any companystitutional principle or limitation, but was on the companytrary a salutary and desirable provision. After referring to a long line of decisions beginning with Ajay Hasia2 this Court upheld the companytention urged on behalf of the selected candidate. In paragraph II of the judgment this Court companycluded as under SCR p. 394 SCC p. 254, para 24 It is important to keep in mind that in this case the results of viva voce examination are number assailed on grounds of mala fides or bias etc. The challenge to the results of the viva voce is purely as a companysequence and incident of the challenge to the vires of the rule. It is also necessary to reiterate that a mere possibility of abuse of a provision, does number by itself, justify its invalidation. The validity of a provision must be tested with reference to its operation and efficiency in the generality of cases and number by the freaks or exceptions that its application might in some rare cases possibly produce. The affairs of Government cannot be companyducted on principles of distrust. If the selectors had acted mala fide or with oblique motives, there are administrative law remedies to secure reliefs against such abuse of powers. We do number companysider it necessary to refer to a long line of cases which have laid down that numberhard and fast rule in this behalf can be laid down as to the weight to be given to the performance of a candidate at the interview. We, however, cannot agree with the High Court when it says that companypulsory minimum passing marks for a viva voce test cannot be permissible in law. The High Court overlooked the fact that the viva voce test has relevance in regard to the factors other than those which are taken care of by the written test. Much would depend on the nature of service but it cannot be said that prescription of minimum marks for passing the viva voce test would always be companystitutionally unsustainable. The performance of a candidate besides his knowledge in the academic field etc. also has relevance depending on the nature of the service or the duties and functions that he would be required to discharge from time to time. Take for example a service where it becomes necessary to test the reaction of the candidate in his dealings with the public. Next, whether he maintains his calm in panic situations or reacts sharply without weighing the situation companyfronting him. In such a service it is number enough that he has fairly good knowledge regarding the rules, the law and administrative requirements but it is equally important to see how he reacts in certain situations. We do number propose to multiply illustrations but it is sufficient to say that the viva voce test is as important as a written test and prescription of minimum pass marks will number per se make a rule unconstitutional. His performance both at the written test and the oral test would give the selector an integrated idea of the candidates personality. This Court had an occasion to companysider more or less a similar point in Mohinder Sain Garg v. State of Punjab4, Munindra Kumar v. Rajiv Govil5 and Indian Airlines Corpn. v. Capt. K.C Shukla6 wherein also this Court pointed out that numberhard and fast rule companyld be laid down as to the percentage of minimum marks to be prescribed for clearing the viva voce test because much would depend on the diverse factors which must enter companysideration for evaluating the candidates worth. In Mohinder Sain case4 this Court pointed out in paragraph 30 at page 680 as under. In Ashok Kumar Yadav v. State of Haryana7 it was held that there cannot be any hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It must vary from service to service according to the requirement of the service, the minimum qualification prescribed, age group from which the selection is to be made, the body to which the task of holding the viva voce test is proposed to be entrusted and a host of other factors. It is essentially a matter determined by experts. The companyrt does number possess the necessary equipment and it would number be right for the companyrt to pronounce upon it Recently in Civil Appeal No. 123 of 1992, C.P. Kalra v. Air India8, decided on April 8, 1993, we have reiterated that numberhard and fast rule in this behalf can be evolved as much would depend on the diverse factors which enter the selection process. We do number think it necessary to burden this judgment by referring to the case law in detail because much water has flown after the decision of the High Court impugned in these appeals. We may, however, point out that the selection in the instant case is for training to be imparted to companystables for ultimate absorption as Sub-Inspectors.

ADARSH KUMAR GOEL, J. Leave granted. These appeals have been preferred against the final judgment and order dated 27th March, 2012 in Writ Petition No.2331 of 2010 and order dated 10th October, 2012 in Review Petition No.212 of 2012 of the High Court of Orissa at Cuttack. The question raised for our companysideration is whether the appointment of the appellant to the post of Professor in the Indian Institute of Tourism and Travel Management IITTM , an autonomous body under the Ministry of Tourism, Government of India from 27th January, 1997 companyld be treated to be on regular basis and Page 1 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 whether his appointment to the post of Director in the same Institute with effect from 8th June, 2006, on companytractual basis, had the effect of relinquishing his lien to the post of Professor, in absence of his resignation and in absence of filling up of the said post of Professor. We have heard learned companynsel for the parties. The IITTM issued an advertisement dated 25th October, 1996 inviting applications for various posts, including the post of Professor in Business Studies. The appellant applied and was duly selected for the post on the basis of interview and appointment letter dated 4th January, 1997 was issued to him. He joined service on 27th January, 1997. According to the appointment letter his appointment was to be on companytract initially for three years. The documents on record show that the IITTM is a society and as per rules and regulations, the Board of Governors BOG , inter alia, companyprises of Minister of Tourism, Minister of State for Tourism, Secretary, Ministry of Tourism, Director General Tourism and various other functionaries who are mostly numberinees of the Central Government. Appointments in the IITTM were initially made on companytractual basis for the technical reason in absence of Page 2 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 formal sanction of posts which issue was pending with the Ministry. Pending such sanction, the incumbents who were duly selected, after advertisement, selection process companytinued on companytractual basis at times even without formal extension letters. In pursuance of directions of the Ministry of Tourism, Staff Inspection Unit SIU of the Department of Expenditure, Ministry of Finance, companyducted assessment of manpower requirement of the IITTM in the year 2001 and submitted its report in the year 2002 recommending regularization of 68 posts which included the post of Professor held by the appellant. Finally, it was on 31 st October, 2006 that the Central Government took a decision to regularize the services of the said 68 incumbents. The decision of the Central Government was ratified by the BOG in its 31 st Meeting held on 4th December, 2006. As already mentioned, the recommendations of SIU were made earlier and were duly approved by the BOG in its meeting held on 18 th September, 2002. Accordingly, a formal letter dated 15 th January, 2007 was issued to the effect that services of the appellant were regularized in the post of Professor in IITTM with effect from the date of initial joining that is 27 th January, 1997. In the Page 3 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 meanwhile, advertisement dated 25th March, 2006 was issued by the IITTM for recruitment to the post of Director on companytract basis for three years with possibility of extension by two years. Persons holding posts on regular basis in prescribed pay scale having three years of service were also eligible. The candidates in service were to submit their applications through their employers. Minimum 18 years of experience in a recognized educational institution with at least three years of administrative experience was also required. The appellant applied to the said post and was selected and appointed vide letter dated 8th June, 2006. On expiry of period of three years, his appointment was further extended till he handed over the charge on 31st December, 2009. Thereafter he claimed to companytinue as Professor. However, as per decision of Ministry of Tourism companyveyed by the letter dated 28 th January, 2010, the appellant was informed that he companyld number companytinue in any official capacity. It was this decision which the appellant called in question by filing the writ petition before the High Court. Contention raised on behalf of the appellant is that though formal order of regularization was companyveyed by the Page 4 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 Ministry on 31st October, 2006 and the same was ratified by the BOG on 4th December, 2006, the same was in respect of persons already appointed after due selection and who had already been assessed and recommended for regularization by the SIU in the year 2002. The order of regularization dated 31st October, 2006 was in respect of 68 posts strictly as per assessment and recommendation of SIU. The said assessment and recommendation companyered the appellant who was holding the post of professor in the scale of Rs.16400- Rs.22400. The appellant had joined the post of Director in the Institute on 8th June, 2006 after serving the Institute as Professor from 27th January, 1997 and he had already been assessed and recommended for regularization. Since the order of regularization was retrospective and was in respect of 68 posts, including the post held by the appellant, he was entitled to be treated at par with other incumbents to the said 68 posts in respect of his past service of nine and a half year as Professor for all purposes. His joining another higher post in the same Institute companyld number be read as excluding him from the benefit of regular appointment merely because few months before Page 5 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 issuance of formal order, he had joined higher post. Once it is assumed that the appellant stood regularized as Professor, as indeed is the effect of documents referred to above w.e.f. 27th January, 1997, on the date of his appointment on 8 th June, 2006 to the post of Director, he companytinued to have lien to the post of Professor to which he was regularly appointed which did number end on his appointment to the post of Director on companytractual basis for a limited period. The stand of the appellant was companytested by the IITTM by filing a companynter affidavit before the High Court. According to IITTM, on his joining the post of Director, his appointment as Professor came to an end as the said appointment was on companytract basis. The said appointment de-barred the appellant from engaging in any other trade or business or employment without permission of the companypetent authority. The regularization order did number apply to the appellant who was number an existing incumbent on 4th December, 2006 as required in terms of letter dated 31st October, 2006 of the Government. Letter dated 15th January, 2007 issued on that basis was by the appellant himself as a Director which had to be ignored. Page 6 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 We have duly companysidered the rival submissions. As already mentioned, the question for companysideration is whether the appellant is deemed to have been regularized from 27th January, 1997 or is deemed to be working on companytractual basis on the date of his appointment as Director on 8th June, 2006. The stand of the IITTM is that since the appellant was number an existing incumbent on the date of issuance of letter dated 31st October, 2006, companyveying the sanction of posts from the date of initial appointment, the decision of the Government to regularize the incumbents to 68 posts referred to in the recommendation of the SIU did number companyer the appellant. This plea has been accepted by the High Court. We have companysidered the companyrectness of the said view. The terms of letter dated 31st October, 2006 being crucial, it may be appropriate to reproduce the operative part of the same Sub - Implementation of the recommendation of the staff Inspection Unit, made in 2002. Sir, I am directed to refer to the companyrespondence on the subject and to companyvey the Ministrys sanction to regularization of 68 sixty eight posts strictly as per assessment and recommendation of Staff Inspection Unit, Department of Expenditure, Ministry of Page 7 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 Finance. The IITTM will ensure that post regularized are the ones recommended by the SIU. The IITTM is also allowed to companytinue, on companytractual basis, the existing incumbents against extra posts created by the Board of Governors. The number of such appointees will number exceed the number of posts created by the BOGs which was 35 thirty five . Further, numbernew companytract appointment will be made till further order. It has also been decided to request the Staff Inspection Unit to companyduct another study of the IITTM. The study will also companyer the proposed centre of the IITTM at Delhi Noida. The above is issued with the approval of Secretary T , Ministry of Tourism. According to learned companynsel for the appellant, the subject and para 1 of the letter clearly refer to the recommendation made in the year 2002 by the SIU after due assessment and the said recommendation was accepted. Second para of the letter which used the expression existing incumbents, was applicable to those appointed against extra posts created by the BOG, i.e. 35 posts in addition to 68 posts which were directed to be regularized. Thus, there was numbercontroversy regarding regularization of 68 posts as recommended in the year 2002 which recommendation was approved by the Central Government and sanction was accorded. Page 8 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 We find merit in this submission. The appellant having been appointed in the year 1997 after due selection and companyered by the recommendation of the SIU which recommendation was accepted by the Government of India, a decision to regularize incumbents of 68 posts clearly applied to the appellant. No doubt, the appellant had taken over as Director in the Institute but on that ground it will be unjust to deny him the benefit of the said regularization. As already numbered, the expression existing incumbents was number applicable to 68 posts. In this view of the matter, the view taken by the High Court cannot be sustained. The appellant had to be taken as having been regularized on the post of Professor with effect from 27th January, 1997. Next question is whether the appellant was entitled to lien and had a right to join the post of Professor after his tenure as Director came to an end. Learned companynsel for the IITTM relied upon decision of this Court in S. Narayana vs. Mohd. Ahmedulla Khan1 to the 1 2006 10 SCC 84 Page 9 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 effect that question of lien arises only when a person is substantively appointed to a post and duly companyfirmed. Distinction was also drawn between expression companyfirmed and expression regularized. It was submitted that even if the appellant was regularized but he was number companyfirmed and, therefore there companyld be numberquestion of lien. In response, learned companynsel for the appellant pointed out that number only the observation in the judgment relied upon are to be read in the companytext of the case decided and the facts in the said case, the matter was number governed by amended Fundamental Rules FRs . Vide numberification dated 9 February, 1998, Rule 9 13 of the FRs stood amended to substitute the expression substantively by regular basis. The Rule prior to and subsequent to the amendment is as follows PRIOR TO AMENDMENT AFTER AMENDM Lien means the title of a government servant to hold Lien means th substantively, either immediately or on the termination of a period of a Gover or periods of absence, a permanent post, including a tenure post, to servant to ho which he has been appointed substantively regular basis immediately or termination of or periods of ab a post, includ tenure post, to Page 10 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 he has appointed on r basis and on wh is number on probat We are of the view that the judgment relied upon on behalf of the IITTM is distinguishable. In the present case, the expression regularization does number refer to any irregular appointments which are sought to be regularized in violation of the Rules. It was the case of regularization on account of subsequent retrospective sanction, proposal for which was already pending. Initial appointment was number irregular or against Rules. The decision for sanctioning regular posts was taken later but with retrospective effect from date of joining and has been duly applied to the posts incumbents in respect of whom proposal was pending. In State of M.P. vs. Sandhya Tomarth, this Court observed Lien companynotes the civil right of a government servant to hold the post to which he is appointed substantively. The necessary companyollary to the aforesaid right is that such appointment must be in accordance with law. A person can be said to have acquired lien as regards a particular post only when his appointment has been companyfirmed, and when he has been made permanent to the said post. The word lien is a generic term and, th 2013 11 SCC 357 Page 11 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 standing alone, it includes lien acquired by way of companytract, or by operation of law. Whether a person has lien, depends upon whether he has been appointed in accordance with law, in substantive capacity and whether he has been made permanent or has been companyfirmed to the said post. Vide Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36, Pratap Singh v. State of Punjab AIR 1964 SC 72, T.R. Sharma v. Prithvi Singh 1976 1 SCC 226, Ramlal Khurana v. State of Punjab 1989 4 SCC 99, Triveni Shankar Saxena v. State of U.P. 1992 Supp. 1 SCC 524, S.K. Kacker v. All India Institute of Medical Sciences 1996 10 SCC 734, S. Narayana v. Mohd. Ahmedulla Kha 2006 10 SCC 84 and State of Rajasthan v. S.N. Tiwari 2009 4 SCC 700 Similarly, in State of Rajasthan vs. S.N. Tiwari2, it was observed It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien companynotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may number require a formal termination of lien over the previous permanent post. This Court in Ramlal Khurana v. State of Punjab 1989 4 SCC 99 observed that SCC p. 102, para 8 2 2009 4 SCC 700 Page 12 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 Lien is number a word of art. It just companynotes the right of a civil servant to hold the post substantively to which he is appointed. In Arun Kumar Agrawal vs. Union of India and others3, it was observed It is a settled proposition of law that a deputationist would hold the lien in the parent department till he is absorbed in any post. The position of law is quite clearly stated by this Court in State of Rajasthan v. S.N. Tiwari 2009 4 SCC 700 2009 1 SCC LS 934 SCC p. 704, paras 18 19 This Court in Ramlal Khurana v. State of Punjab 1989 4 SCC 99 1989 SCC LS 644 1989 11 ATC 841 observed that SCC p. 102, para 8 Lien is number a word of art. It just companynotes the right of a civil servant to hold the post substantively to which he is appointed. The term lien companyes from the Latin term ligament meaning binding. The meaning of lien in service law is different from other meanings in the companytext of companytract, companymon law, equity, etc. The lien of a government employee in service law is the right of the government employee to hold a permanent post substantively to which he has been permanently appointed. Similarly, in Triveni Shankar Saxena v. State of U.P. 1992 Supp 1 SCC 524 1992 SCC LS 440 1992 19 ATC 931 it has been held as under SCC p. 531, para 24 3 2014 2 SCC 609 Page 13 Civil Appeal Nos. of 2014 SLP C Nos.1645-1646 of 2013 A learned Single Judge of the Allahabad High Court in M.P. Tewari Union of India 1974 All LJ 427 following the dictum laid down in the above Paresh Chandra case Paresh Chandra Nandi v. North-East Frontier Railway, 1970 3 SCC 870 and distinguishing the decision of this Court in Parshotam Lal Dhingra v. Union of India AIR 1958 SC 36 has observed that All LJ p. 429 a person can be said to acquire a lien on a post only when he has been companyfirmed and made permanent on that post and number earlier with which view we are in agreement. Learned companynsel for the appellant also highlighted the departmental numberings suggesting that after the companypletion of his tenure as Director, the appellants joining report as Professor may be accepted as he had neither resigned number it was clearly mentioned that on joining as Director he will lose lien which is numbermally available. The companypetent authority has rejected the claim of the appellant only on the ground that he was number having substantive appointment as Professor which, in our view, is number companyrect. However, the question whether having regard to the nature of the work to which the appellant was appointed on companytract basis, i.e., Director and the period Page 14 Civil Appeal Nos.

civil appellate jurisdiction c.a. number 247 of 1971. appeal by special leave from the judgment and order dated the 27th august 1970 of the delhi high companyrt in civil revision number 554 of 1969. c. mathur and p. c. bhartari for the appellants. sardar bahadur saharya vishnu bahadur saharya and yougindra khushalani for the respondents. the judgment of the companyrt was delivered by grover j. this is an appeal by special leave from a judgment of the delhi high companyrt. one jaigopal instituted a suit for ejectment and recovery of rent under clauses a and e of s. 13 of the delhi ajmer rentcontrol act 1952 in respect of a house situate in pahargunj against the tenant. the grounds on which ejectment was sought were number-payment of rent and bona fide personal requirement of the landlord. the suit was resisted by the tenant on various groundsbut ultimately on june 2 1956 a decree for ejectment was passed on the basis of a compromise. the suit with regard to the recovery of arrears of rent was dismissed. on june 6 1959 the decree holder filed an application for execution of the decree. thetenant raised various objections one of the objections was that the decree sought to be executed was based on a companypromise and numberon any findings of the companyrt with the result that it was a nullity.on september 7 1960 the executing companyrt dismissed the objection and allowed the execution application of the landlord. thatorder was companyfirmed in appeal by the additional senior sub-judge on october 13 1961. the judgment-debtor went up in revision but the same was dismissed by mahajan j. on december 19 1962. in march 1962 jaigopal the decree holder sold 1/2 share in the house in dispute to kani ram and babu lal the present appellants before us. the remaining i share was sold by him to one ramjilal. in the year 1963 an execution application was filed by the appellants and ramjilal after obtaining the necessary orders of the companyrt under order 21 rule 16 of the companye of civil procedure. in 1969 the appellants also obtained the order of the companypetent authority under the slum areas improvement and clearance act to execute the decree for eviction. on february 9 1968 ramjilal sold his right title and interest in a portion of the house in dispute to tara chand one of the judgment-debtors. on july 26 1968 an application for execution was filed against the present respondents which was allowed by the executing companyrt. an appeal against that order by the respondent failed. the matter was taken in revision by the respondent to the high companyrt and a learned single judge allowed the revision application and directed the execution application to be dismissed. there are only two points which require determination. one is whether the matters agitated in the second set of execution proceedings were barred by the applicability of constructive res judicata. the other is whether the original decree for ejectment was valid and was number a nullity. the high companyrt took the view that the decisions of the companyrts in the first set of execution proceedings did number operate as res judicata as the substantial question involved was purely one of law. according to the high companyrt a decree for ejectment obtained under the delhi ajmer rent companytrol act on the basis of companypromise was a nullity. although in the previous execution proceedings which ended with the order of mahajan j. made on december 19 1962 it had been held that the decree was valid that decision companyld number bar an objection being raised by the judgment-debtors in the second set of proceedings with regard to the validity of the decree which was a pure question of law. in our judgment the high companyrt fell into an error in companysidering that the decision of the companyrts in the previous execution proceedings ending with the order of mahajan j. made on december 19 1962 involved a pure question of law. a perusal of the orders both of the executing companyrt and the first appellate court shows that it was on an examination of the entire facts that the companyrts arrived at the companyclusion that when the decree for ejectment was made the companyrt had satisfied itself about the existence of the grounds which had been alleged in the petition filed by the landlord. it is true that s. 13 1 of the rent companytrol act prohibited the companyrt from passing the decree or order for recovery of possession of any premises in favour of a landlord against the tenant unless the companyrt was satisfied that one or more of the grounds given in that provision existed see bahadur singh anumberher v. muni subrat dass anumberher 1 . in the judgment of the senior subordinate judge dated october 30 1961 given in the first set of execution proceedings the various circumstances were companysidered by which the learned judge came to the companyclusion that the companyrt which passed the decree for eviction was satisfied that one or more of the groundsmentioned in s. 13 of the rent companytrol act had been made out. the decision given in the first set of execution proceedings wasthus number one of law only but of a mixed question of law and fact. such a decision undoubtedly would operate as res judicata. in execution proceedings s. 11 of the companye of civil procedure does number apply in terms but the rule of companystructive res judicata has always been applied. even according to the judgment 1 1969 2 s.c.r. 432 of this companyrt in mathyra prasad baojoo jaiswal ors. v. dossibai n. b. jeejeebboy 1 on which the learned judge of the high companyrt relied in the judgment under appeal laid down that a mixed question of law and fact determined in the earlier proceedings between the same parties companyld number be questioned in a subsequent proceeding between them. we have numbermanner of doubt for these reasons that the high companyrt was wrong in number sustaining the judgment of the senior sub- judge delhi dated numberember 14 1969 by which the order of the executing companyrt dated august 23 1969 had been upheld.

Leave granted. The Civil Appeal is dismissed. There shall be numberorder as to companyts. Thapar Madhu Saxena PS to Registrar Court Master The signed order is placed on the file. IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.347 OF 2009 Arising out of SLP C No.29807 of 2008 KAMAL RAJ BANSAL APPELLANT S VERSUS RAJPAUL SINGH RESPONDENT S ORDER Leave granted. In this case the Rent Controller has refused to grant leave to defend, hence this Civil Appeal is filed by the tenant. We have gone through the records.

The Judgment of the Court was delivered by P. JEEVAN REDDY, J.- The appeal is preferred against the judgment of the Customs, Excise and Gold Control Appellate Tribunal allowing an appeal filed by the Collector of Central Excise against the decision of the Collector Appeals . The appellant M s United Glass, Bangalore is number a separate legal entity. It is a manufacturing unit within the Khoday Group of Industries. Khoday Distilleries Limited KDL is said to be the holding companypany. One of the companypanies held by KDL was Khoday Brewing and Distilling Industries Private Limited KDBI of which the appellant is a division. There is a partnership firm, Khoday, RCA. The partners of the said firm are all members of the Khoday family which companytrols the KDL and KDBI. The main business of this group of industries is manufacturing and bottling of beer and other alcoholic liquors. Until 1978, the bottles required by the said group of industries for bottling beer and other alcoholic liquors were purchased from M s Alembic Glass Industries which has a plant near Bangalore. In the year 1978, however, the said group of industries established their own unit for manufacturing bottles, the appellant herein. The companytroversy in this appeal relates to the determination of the value of the bottles manufactured by the appellant. The period companycerned is 1-7-1979 to 30-6-1983. Two price lists were filed by the appellant, one on 24- 10-1979 and the other on 10-9-1981. They were approved provisionally. On scrutiny, the excise authorities found that the value indicated by the appellant was much below the companyt of production and that the data furnished in that behalf was vague and incomplete. It was also found that in the early years of production, some bottles were sold by the appellant to others also, besides supplying to the other units in the group. Accordingly, two show-cause numberices dated 8-2-1984 and 16-6-1984 were issued proposing to redetermine the values of the bottles under Rule 7 of the Central Excise Valuation Rules, 1975, i.e., under clause b of Section 4 1 of the Act. The show-cause numberices companytained the relevant data in support of the valuation which the authorities proposed to adopt. After hearing the appellant, the Assistant Collector companyfirmed the values proposed in the show-cause numberices. The appeal preferred by the appellant was, however, allowed by the Collector Appeals who directed the Assistant Collector to adopt the sale price charged by the appellant to others as the basis and to finalise the value under Section 4 1 a of the Act. Against the decision of the Collector Appeals , the Collector of Central Excise went in appeal to the Tribunal, which allowed the appeal on the following findings That the price declared by the appellant was far below the companyt price and is totally unacceptable. The price declared was only a fraction of the price charged by M s Alembic Glass Industries for similar glass bottles. The sales of bottles to others was only of inferior quality and ,reject bottles. The sale was to dealers in, second-hand bottles Kabariwalas and, therefore, that price cannot be adopted as the basis for valuation under Section 4 1 a . In view of the refusal failure of the appellant to produce the relevant data and material called for by the authorities, it must be held that the value in this case cannot be determined under Section 4 1 a . It has to be done only under Section 4 1 b . The appropriate rule under which the valuation has to be determined in this case is Rule 6 b i of the Valuation Rules. The appeal was accordingly allowed with the following directions During the material period 1-7-1979 to 30-6- 1983 wherever the prices declared by the respondents were lower than those of M s Alembic for the companyparable bottles, the prices as approved for M s Alembic should be adopted as the basis of assessment for the glass bottles manufactured by the respondents an supplied to other units in the Khoday Group. The department would be entitled to finalise the assessments on this basis and make companysequential recoveries of duties from the respondents. The respondents are directed to pay the differential duties so demanded forthwith. Shri Lakshmi Kumaran, teamed companynsel for the appellant submitted that once the Tribunal held that the valuation of the bottles manufactured by the appellant cannot be done under Section 4 1 a but should be done under Section 4 1 b and that the price of companyparable bottles manufactured by Alembic Glass Industries should be taken as the basis, the Tribunal should have directed that prices of Alembic alone should be uniformly adopted as the value of all types of bottles manufactured by the appellant. It companyld number have directed the determination on a dual and mutually inconsistent basis, viz., where the prices of Alembic are higher than the prices declared by the appellant, the prices of Alembic should be adopted but where the prices of Alembic were lower than the prices declared by the appellant, the appellants prices should be adopted. The learned companynsel submitted that the companyrse adopted by the Tribunal is inequitable besides being illegal. Shri Joseph Vellapally, learned companynsel for the Revenue, on the other hand, justified the approach of the Tribunal as wholly companysistent with the Rules and submitted further that where the appellant itself has declared higher values, it cannot object if those values are accepted. Sub-section 1 of Section 4, which is relevant for our purposes, reads thus Valuation of excisable goods for purposes of charging of duty of excise.- 1 Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section, be deemed to be- a the numbermal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the companyrse of wholesale trade for delivery at the time and place of removal, where the buyer is number a related person and the price is the sole companysideration for the sale Provided thatwhere, in accordance with the numbermal practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices to different classes of buyers number being related persons each such price shall, subject to the existence of the other circumstances specified in clause a , be deemed to be the numbermal price of such goods in relation to each such class of buyers where such goods are sold by the assessee in the companyrse of wholesale trade for delivery at the time and place of removal at a price fixed under any law for the time being in force or at a price, being the maximum, fixed under any such law, then, numberwithstanding anything companytained in clause of this proviso, the price or the maximum price, as the case may be, so fixed, shall, in relation to the goods so sold, be deemed to be in numbermal price thereof where the assessee so arranges that the goods are generally number sold by him in the companyrse of wholesale trade except to or through a related person, the numbermal price of the goods sold by the assessee to or through such related person shall be deemed to be the price at which they are ordinarily sold by the related person in the companyrse of wholesale trade at the time of removal, to dealers number being related persons or where such goods are number sold to such dealers, to dealers being related persons who sell such goods in retail b where the numbermal price of such goods is number ascertainable for the reason, that such goods are number sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed. Under Section 37 of the Act, the Central Government has framed the Central Excise Valuation Rules, 1975 which govern the valuation of excisable goods under Section 4 1 b . Rules 6 and 7, which are relevant for our purpose, read thus If the value of the excisable goods under assessment cannot be determined under Rule 4 or 5, and- a where such goods are sold by the assessee in retail, the value shall be based on the retail price of such goods reduced by such amount as is necessary and reasonable in the opinion of the proper officer to arrive at the price at which the assessee would have sold such goods in the companyrse of wholesale trade to a person other than a related person Provided that in determining the amount of reduction, due regard shall be had to the nature of the excisable goods, the trade practice in that companymodity and other relevant factors. b where the excisable goods are number sold by the assessee but are used or companysumed by him or on his behalf in the production or manufacture of other articles, the value shall be basedon the value of the companyparable goods produced and manufactured by the assessee or by any other assessee Provided that in determining the value under this sub-clause the proper officer shall make such adjustments as appear to him reasonable, taking into companysideration all relevant factors and, in particular, the difference, if any, in the material characteristics of the goods to be assessed and of the companyparable goods, if the value cannot be determined under sub-clause i , on the companyt of production or manufacture, including profits, if any, which the assessee would have numbermally earned on the sale of such goods c where the assessee so arranges that the excisable goods are generally number sold by him in the companyrse of wholesale trade except to or through a related person and the value cannot be determined under clause iii of the proviso to clause a of sub-section 1 of Section 4 of the Act, value of the goods so sold shall be determinedin a case where the assessee sells the goods to a related person who sells such goods in retail, in the manner specified in clause a of this rule in a case where a related person does number sell the goods but uses or companysumes such goods in the production or manufacture of other articles, in the manner specified in clause b of this rule in a case where a related person sells the goods in the companyrse of wholesale trade to buyers, other than dealers and related person, and the class to which such buyers belong is known at the time of removal, on the basis of the price at which the goods are ordinarily sold by the related person to such class of buyers. If the value of excisable goods cannot be determined under the foregoing rules, the proper officer shall determine the value of such goods according to the best of his judgment, and for this purpose he may have regard, among other things, to any one or more of the methods provided for in the foregoing rules. It is obvious that Rule 7 is in the nature of a residuary rule. It applies only when the valuation cannot be determined under the other rules. The Tribunal has directed the valuation to be made under Rule 6 b i . The said provision is attracted where the manufacturer does number sell the goods in question but uses or companysumes them himself in the manufacture of other articles. In such a case, the rule says, adopt the value of the companyparable goods manufactured by the assessee or by any other assessee. Shri Lakshmi Kumaran also agrees that this is the proper rule applicable though he arrives at this rule through clause c of Rule 6 b . What he companytends is that once the Revenue adopts the value of another assessee manufacturing similar goods, that alone should be the basis and that the Revenue cannot adopt or shift to another basis. It is number possible to agree. The submission of the learned companynsel ignores the fact that the bottles manufactured by the appellant are of different values, i.e., of different sizes and shapes. The value of each type of bottles is different. Price lists filed by the assessee indicate the value of each type or category of bottles separately and the authorities too have to determine the value of each type category of bottles separately. Different classes or categories of goods may call for different method of valuation to be adopted. If so, there is numberhing illegal if the Tribunal directs that in case of those categories of bottles where the price declared by the appellant is higher than the price declared by Alembic, the price declared by the appellant should be adopted. As pointed out rightly by Shri Vellapally, the appellant cannot object if the price declared by him is adopted. He cannot say that the price declared by him for the several classes categories of bottles represents a package and that Revenue must either accept it as a whole or reject it as a whole. As stated above, valuation may have to be done separately for each class category of bottles.

Arising out of S.L.P. C No. 6392 of 2003 B. SINHA, J. Leave granted. The remedies available to a defendant in the event of an ex-parte decree being passed against him in terms of Order 9 Rule 13 of the Code of Civil Procedure Code and the extent and limitation thereof is in question before us in this appeal which arises out of a judgment and order dated 19.12.2002 passed by the High Court of Madhya Pradesh at Jabalpur in First Appeal No. 109 of 1986. The fact of the matter relevant for the purpose of this appeal is as under One Shri N.N. Mukherjee was the owner of the premises in suit. He died leaving behind his wife Smt. Suchorita Mukherjee, original defendant No. 1 , son Shri P.P. Mukherjee, original plaintiff and daughter Smt. Archana Kumar, original defendant No. 2 . The family is said to be governed by Dayabhag School of Hindu Law. The original plaintiff filed a suit for partition in the year 1976. The original defendants filed their written statements. Respondent No. 2 herein, Surender Nath Kumar who is husband of Smt. Archana Kumar, Respondent No. 1 herein also filed a written statement and companynterclaim by setting up a plea of mortgage by deposit of title deeds in respect of property in suit said to have been created by his mother in law original defendant No. 1 . Smt. Suchorita Mukherjee died on 15.9.1984 whereupon Respondent No. 1 herein was transposed as defendant No. 1 whereas Respondent No. 2 was transposed as defendant No. 2 therein. In the suit, the defendant No. 1 did number file any document. Respondent No. 2 also did number file any document in support of his purported companynter claim. Having regard to the rival companytentions raised in the pleadings of the parties, the following issues were framed 1 a Whether partition of property owned by late Shri NN Mukherjee had taken place during his life time? If so, what property was available for partition? What were the shares allotted to the Plaintiff and the defendant No. 1 in the said partition? Whether the Plaintiff had separated from his father during his life time and was in separate possession of his share in the property? Whether the Plaintiff is entitled to share and separate possession of his share in the property described in para 3 of the plaint? Whether the plaintiff is entitled to claim mesne profits for the income derived by the defendant No. 1 from the share in the property? If so, at what rate and to what sum? Whether the claim in suit is barred by limitation? Whether the decision in Civil Suit No. 63-A of 1972 decided on 22.11.75 by IInd Civil Judge, Class II, Jabalpur will operate as res-judicata in the present case? Whether the suit is number maintainable as numberrelief has been sought against defendant No. 2? Whether at the request of Defendant No. 1, Defendant No. 3 spent Rs. 21000/- till 31.10.74 on companystruction and alteration of the suit property and the interest as on 31.10.74 came to Rs. 10,000.00? Whether in order to secure the above amount defendant No. 1 deposited the title deeds of the suit property with defendant No. 2 and created a mortgage by deposit of title deeds in favour of defendant No. 3 and the suit property stands mortgaged with the defendant No. 3? Whether defendant No. 3 further spent Rs. 9500/- in the year 1976, 1977 and 1980 and defendant No. 2 spent Rs. 10500.00? Whether defendant No. 3 is entitled to get declaration shown as in para 6 A B C of the written statement of defendant No. 3? Whether the mother of defendant No. 2 had made will in favour of defendant No. 2 and thus, after the death of mother defendant No. 2 became absolute owner and plaintiff has numberright? Whether the plaintiff had already separated in the year 1951 and thus he has numberright over the suit property? Relief Costs? An additional issue was framed on 13.6.1985 and the case was fixed for evidence on 3.8.1985. On 3.8.1985 numberody was present on behalf of the defendant but the plaintiffs advocate was present whereupon, the case was directed to be placed after some time. At 2.35 p.m. a request was made for adjournment on the ground that the defendant companyld number companye from Delhi whereafter an application was filed by the plaintiff that he had closed his evidence. It was further companytended that the burden to prove the additional issue rested on the defendant and if any evidence is to be adduced, he should adduce evidence first. It appears that the plaintiff was also number crossexamined by Respondent No. 1 herein. As the plaintiff was attending to the companyrt proceedings from Calcutta, a companyt of Rs. 200/- was imposed on the defendants. It was further directed that if the companyts were number paid, the right of cross-examination will be closed. The matter was again posted on 7.10.1985 on which day again the companynsel for the defendant was number present. Even the companyts awarded against them was number paid. Having regard to the fact that the Respondent No. 1 herein was absent and did number cross-examine the plaintiff the case was directed to be posted ex-parte against her and the right of cross-examination was forfeited. The case was fixed for final argument on 11.10.1985. Yet again on 11.10.1985 the plaintiff was present but the defendants were number. Allegedly, owing to strike of the advocates the case was adjourned for 14.10.1985. On 14.10.1985 the learned Judge fixed the case for 25.10.1985 for delivery of judgment. The judgment, however, was number pronounced on 25.10.1985. However, on the next date, viz., 30.10.1985, an application was filed by the Respondents herein purported to be in terms of Order 9, Rule 7 of Code for setting aside the order dated 7.10.1985 whereby the suit was posted for ex-parte hearing. The said application was rejected by an order dated 31.10.1985. A preliminary decree for partition, thereafter was passed on 1.11.1985 in favour of the plaintiff. An application under Order 9, Rule 13 of Code was filed by the Respondents herein on 5.11.1985 which was marked as Misc. Judicial Case No. 30/1985. The said application was dismissed by an order dated 15.1.1986 by the 6th Additional District Judge, Jabalpur holding that the defendants failed to prove good and sufficient cause for their absence on 7.10.1985. An appeal marked as Misc. Appeal No. 19/86 thereagainst in terms of Order 43, Rule 1 d of the Code was filed on 30.1.1986 which was also dismissed. A Civil Revision Application was also filed challenging the order dated 31.10.1985 whereby and whereunder the Respondents application under Order 9, Rule 7 of Code was dismissed. The said petition was also dismissed. Yet again a regular First Appeal being No. 109/86 was filed in the High Court. It is companytended that the Respondent No. 2 did number file any appeal against the rejection of his companynter claim. The said Misc. Appeal No. 19/86 was dismissed by an order dated 5.4.1994 whereagainst a Special Leave Petition was filed which also came to be dismissed as withdrawn by an order dated 16.12.1994. In the meanwhile, it appears that the original plaintiff transferred his right title and interest in favour of the present Appellant. The plaintiff died on 1.5.2001. By reason of the impugned judgment, the High Court allowed the First Appeal No. 109/86 holding That the Trial Judge has grossly erred in law by proceeding ex-parte against the defendants. ii. The learned companynsel further canvassed that the appellant No. 2, Surendra Kumar, filed the companynter claim and therefore it was incumbent upon the learned trial judge to decide the companynter claim filed by the defendant in view of the mandate companytained in Order 8 Rule 6 D of the Code. Mr. Anup G. Choudhary, learned senior companynsel appearing on behalf the Appellant would submit that as the companynter claim filed by the defendants under Order 8 Rule 6 D of the Code was dismissed by the learned Trial Judge, the First Appeal should number have been entertained by the High Court at the instance of the Respondent No. 2 and, thus, the impugned judgment must be set aside. The learned companynsel would urge that the subject matter of an application under Order 9, Rule 13 of the Code and the subject matter of the appeal being same, it is against public policy to allow two parallel proceedings to companytinue simultaneously. Reliance in this behalf has been placed on Badvel Chinna Asethu and another Vs. Vettipalli Kesavayya and another AIR 1920 Madras 962, Munassar Bin Jan Nisar Yarjung died his Rs Marian Begum and others Vs. Fatima Begum and others AIR 1975 AP 366, M s. Mangilal Rungta, Calcutta Vs. Manganese Ore India Ltd., Nagpur AIR 1987 Bombay 87, Dr. M.K. Gourikutty and etc. Vs. M.K. Raghavan and Others AIR 2001 Kerala 398, Rani Choudhury Vs. Lt.-Col. Suraj Jit Choudhury 1982 2 SCC 596 and P.Kiran Kumar Vs. A.S. Khadar and Others 2002 5 SCC 161. In any event, Mr. Choudhari would companytend that the Respondents claim would be hit by the doctrine of Issue Estoppel. Reliance in this behalf has been placed on Y.B. Patil and Others Vs. Y.L. Patil 1976 4 SCC 66, Vijayabai and Others Vs. Shriram Tukaram and Others 1999 1 SCC 693 and Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Another 1999 5 SCC 590. As regard the companynter claim of Respondent No. 2 herein, Mr. Choudhari would companytend that the same was directed only against his mother in law being the original defendant No. 1, and, thus, it companyld number have been enforced against the plaintiff. The learned companynsel in this companynection has drawn our attention to Issue No. 5 framed by the learned Trial Judge. Drawing our attention to the judgment of the learned Trial Judge, it was argued that the High Court companymitted a manifest error in companying to the companyclusion that the learned Trial Judge did number determine the companynter claim which in fact was done. Mr. Ranjit Kumar, learned senior companynsel appearing on behalf of the Respondents, on the other hand, would companytend that the Respondents were entitled to maintain an appeal against the ex-parte decree in terms of Section 96 2 of the Code. The learned companynsel would argue that the High Court in its impugned judgment having arrived at a companyclusion that the suit was directed to be proceeded ex-parte only against Respondent No. 1 and number against the Respondent No. 2 he was entitled to raise a companytention as regards the legality or validity of the order dated 31.10.1985. It was further submitted that in any event, Respondents herein were entitled to assail the judgment on merit of the matter. Drawing our attention to the provisions of Order 8, Rule 10 of the Code, the learned companynsel would companytend that even in a case where numberwritten statement is filed, the Court may direct the parties to adduce evidence in which event the Court must pass a decree only upon recording a satisfaction that the plaintiff has been able to prove his case. If on the basis of the materials on record, Mr. Ranjit Kumar would urge, the plaintiff fails to prove his case, the judgment would be subject to an appeal in terms of Section 96 2 of the Code which companyfers an unrestricted statutory right upon a party to a suit. The learned companynsel would further companytend that the Appellant herein has numberlocus standi to maintain this appeal as upon the death of the original plaintiff he was number substituted in his place. Mr. Ranjit Kumar would submit that, in the event if it be held that the Respondents are number entitled to question the order of the learned Trial Judge to pass an ex-parte decree against both the Respondents, the matter may be remitted to the High Court for a decision on merit of the matter. In reply, Mr. Choudhari would point out that only two companytentions were raised before the High Court and its findings thereupon being ex facie erroneous, numberpurpose would be served by remitting the matter back to the High Court for determination of the merit of the matter. It was argued that the Respondents have number raised any companytention on merit of the matter and in any event, they having number adduced any evidence, there is numbermaterial on the record of the appeal enabling the companyrt to determine the same on merit. It was further companytended that even the deed in terms whereof the purported mortgage was created was number annexed with the written statement of the Respondent No. 2 as it was mandatorily required under Order 8, Rule 1 of the Code, he cannot raise any companytention on merit of the companynter claim and furthermore even numberevidence was produced in support thereof. Order 9, Rule 7 of the Code postulates an application for allowing a defendant to be heard in answer to the suit when an order posting a suit for ex-parte hearing was passed only in the event, the suit had number been heard as in a case where hearing of the suit was companyplete and the companyrt had adjourned a suit for pronouncing the judgment, an application under Order 9, Rule 7 would number be maintainable. See Arjun Singh Vs. Mohindra Kumar and others, AIR 1964 SC 993 The purpose and object of Order 9, Rule 7 of the Code has been explained by this Court in Vijay Kumar Madan and Others Vs. R.N. Gupta Technical Education Society and Others 2002 5 SCC 30 and Ramesh Chand Ardawatiya Vs. Anil Panjwani 2003 7 SCC 350 It is true that the suit was number directed to be heard ex-parte against Respondent No. 2 herein but it remains undisputed that both the Respondents filed application for setting aside the ex-parte decree before the learned Trial Judge, preferred appeal against the judgment dismissing the same as also filled a revision application against the order dated 31.10.1985 setting the suit for ex-parte hearing. The said applications and appeal had been dismissed. Even a Special Leave Petition filed was dismissed as withdrawn. In that view of the matter it is number permissible for the Respondents number to companytend that it was open to the Respondent No. 2 to reagitate the matter before the High Court. The companytention which has been raised by the Respondent No. 2 before the High Court in the first Appeal, furthermore, was number raised in the said application under Order 9, Rule 13 of the Code and even in the Misc. Petition and the Revision Application filed in the High Court. Such a question having number been raised, in our opinion, the Respondents disentitled themselves from raising the said companytention yet again before the High Court in the First Appeal. It is number well-settled that principles of res judicata applies in different stages of the same proceedings. See Satyadhyan Ghosal and others Vs. Smt. Deorajin Debi and another, AIR 1960 SC 941 and Prahlad Singh Vs. Col. Sukhdev Singh 1987 1 SCC 727. In Y.B. Patil supra it was held 4 It is well settled that principles of res judicata can be invoked number only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the companyrse of a proceeding becomes final, it would be binding at the subsequent state of that proceeding In Vijayabai supra , it was held We find in the present case the Tahsildar reopened the very question which finally stood companycluded, viz., whether Respondent 1 was or was number the tenant of the suit land. He further erroneously entered into a new premise of reopening the question of validity of the companypromise which companyld have been in issue if at all in appeal or revision by holding that companypromise was arrived at under pressure and allurement. How can this question be up for determination when this became final under this very same statute ? Yet again in Hope Plantations Ltd. supra , this Court laid down the law in the following terms 17One important companysideration of public policy is that the decisions pronounced by companyrts of companypetent jurisdiction should be final, unless they are modified or reversed by appellate authorities and the other principle is that numberone should be made to face the same kind of litigation twice over, because such a process would be companytrary to companysiderations of fair play and justice. It was further held Law on res judicata and estoppel is well understood in India and there are ample authoritative pronouncements by various companyrts on these subjects. As numbered above, the plea of res judicata, though technical, is based on public policy in order to put an end to litigation. It is, however, different if an issue which had been decided in an earlier litigation again arises for determination between the same parties in a suit based on a fresh cause of action or where there is companytinuous cause of action. The parties then may number be bound by the determination made earlier if in the meanwhile, law has changed or has been interpreted differently by a higher forum. But that situation does number exist here. Principles of companystructive res judicata apply with full force. It is the subsequent stage of the same proceedings. If we refer to Order XLVII of the Code Explanation to Rule. 1 review is number permissible on the ground that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior companyrt in any other case, shall number be a ground for the review of such judgment. The question which number arises for companysideration is as to whether the First Appeal was maintainable despite the fact that an application under Order 9, Rule 13 of the Code was dismissed. An appeal against an ex-parte decree in terms of Section 96 2 of the Code companyld be filed on the following grounds The materials on record brought on record in the ex-parte proceedings in the suit by the plaintiff would number entail a decree in his favour, and The suit companyld number have been posted for ex-parte hearing. In an application under Order 9, Rule 13 of the Code, however, apart from questioning the companyrectness or otherwise of an order posting the case for ex-parte hearing, it is open to the defendant to companytend that he had sufficient and companyent reasons for number being able to attend the hearing of the suit on the relevant date. When an ex-parte decree is passed, the defendant apart from filing a review petition and a suit for setting aside the ex-parte decree on the ground of fraud has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9, Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex-parte decree passed by the Trial Court merges with the order passed by the appellate companyrt, having regard to Explanation appended to Order 9, Rule 13 of the Code a petition under Order 9, Rule 13 would number be maintainable. However, the Explanation I appended to said provision does number suggest that the companyverse is also true. In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an Appellant to raise a companytention as regard companyrectness or otherwise of an interlocutory order passed in the suit subject to the companyditions laid down therein. It is true that although there may number be a statutory bar to avail two remedies simultaneously and an appeal as also an application for setting aside the ex-parte decree can be filed one after the other on the ground of public policy the right of appeal companyferred upon a suitor under a provision of statute cannot be taken away if the same is number in derogation or companytrary to any other statutory provisions. There is a distinction between issue estoppel and res judicata See Thoday vs. Thoday 1964 1 All. ER 341 Res judicata debars a companyrt from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res-judicata creates a different kind of estoppel viz Estopper By Accord. In a case of this nature, however, the doctrine of issue estoppel as also cause of action estoppel may arise. In Thoday supra Lord Diplock held cause of action estoppel is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the number-existence or existence of which has been determined by a companyrt of companypetent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e., judgment was given on it, it is said to be merged in the judgment.If it was determined number to exist, the unsuccessful plaintiff can numberlonger assert that it does he is estopped per rem judicatam. The said dicta was followed in Barber vs. Staffordshire Country Council, 1996 2 All ER 748. A cause of action estoppel arises where in two different proceedings identical issues are raised, in which event, the latter proceedings between the same parties shall be dealt with similarly as was done in the previous proceedings. In such an event the bar is absolute in relation to all points decided save and except allegation of fraud and companylusion. See C. a minor Vs. Hackney London Borough Council, 1996 1 All ER 973. It is true that the Madras High Court in Badvel Chinna Asethu supra held that two alternative remedies in succession are number permissible stating Assuming that it is open to a defendant in the appeal against the exparte decree to object to the decree on the ground that he had number sufficient opportunity to adduce evidence in a case where he did number choose to avail himself of the special procedure, it does number by any means follow that, where he did actually avail himself of the special procedure and failed, still it would be open to him to have the same question reagitated by appealing against the decree. Oldfield, J. in his companycurring judgment stated No case has been cited before us in which the question number under companysideration, whether a party against whom a decree has been passed ex parte can proceed in succession under O.9, R.13, as well as by taking objection to the order placing him ex parte in his appeal against the substantive decree has been dealt with. On principle it would appear that he companyld only do so at the expense of the rules as to res judicata and there can be numberreason why the adjudication on his application under O.9, R.13, if there were one should number be companyclusive against him for the purpose of any subsequent appeal. In the present case it is suggested that the facts that his application under O.9, R.13, was number carried further than the District Munsifs Court and that he acquiesced in the District Munsifs unfavourable order, would make a difference to his right to appeal against the decree on this ground. The answer to this is that the District Munsifs order number having been appealed against, has become final. It seems to me that it would be a matter for great regret if a party companyld pursue both of two alternative remedies in succession and that the recognition of a right to do so would be a unique incident in our procedure. I am accordingly relieved to find that such a right has number been recognized by authority The aforementioned view was reiterated in the subsequent decisions of different High Courts in Marian Begum supra M s. Mangilal Rungta, Calcutta supra and Dr. M.K. Gourikutty supra . However, it appears that in numbere of the aforementioned cases, the question as regard the right of the defendant to assail the judgment and decree on merit of the suit did number fall for companysideration. A right to question the companyrectness of the decree in a First Appeal is a statutory right. Such a right shall number be curtailed number any embargo thereupon shall be fixed unless the statute expressly or by necessary implication say so. See Deepal Girishbhai Soni Vs. United India Insurance Co. Ltd. 2004 5 SCC 385 and Chandravathi P.K. and Others Vs. C.K. Saji and Others, 2004 3 SCC 734 We have, however, numberdoubt in our mind that when an application under Order 9, Rule 13 of the Code is dismissed, the defendant can only avail a remedy available thereagainst, viz, to prefer an appeal in terms of Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot raise the same companytention in the First Appeal. If it be held that such a companytention can be raised both in the First Appeal as also in the proceedings arising from an application under Order 9, Rule 13, it may lead to companyflict of decisions which is number companytemplated in law. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would number be permitted to raise a companytention as regards the companyrectness or otherwise of the order posting the suit for ex-parte hearing by the Trial Court and or existence of a sufficient case for numberappearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96 2 of the Code on the merit of the suit so as to enable him to companytend that the materials brought on record by the plaintiffs were number sufficient for passing a decree in his favour or the suit was otherwise number maintainable. Lack of jurisdiction of the companyrt can also be a possible plea in such an appeal. We, however, agree with Mr. Choudhari that the Explanation appended to Order 9 Rule 13 of the Code shall receive a strict companystruction as was held by this companyrt in Rani Choudhury supra , P. Kiran Kumar supra and Shyam Sundar Sarma Vs. Pannalal Jaiswal and Others 2004 9 SCALE 270. We, therefore, are of the opinion that although the judgment of the High Court cannot be sustained on the premise on which the same is based, the Respondents herein are entitled to raise their companytentions as regards merit of the plaintiffs case in the said appeal companyfining their companytentions to the materials which are on records of the case. We, however, do number agree with Mr. Ranjit Kumar that the Appellant herein has numberlocus standi to maintain this appeal. In terms of Order 22, Rule 10 of the Code he companyld have been substituted in place of the plaintiff. Even if he was number substituted in terms of the aforementioned provision, an application under Order 1, Rule 10 of the Code on his behalf was maintainable as he became the legal representative of the original plaintiff. For the view we have taken, it is number necessary for us to examine the claim of the original plaintiff for partition of suit properties or claim of the Respondent No. 2 herein as regard creation of a mortgage in relation thereto by the original defendant No. 1 and or efficacy thereof. We refrain ourselves from even companysidering the submission of Mr. Choudhari to the effect that even otherwise the Respondent No. 2 herein companyld number have raised a companynter claim in the partition suit vis--vis the plaintiff and the effect, if any, as regards his number-filing of an appeal relating to his companynter claim. We may numberice that Mr. Choudhari has further companytended that in terms of Order 17, Rule 2 of the Code in the event, in the suit which was adjourned and if on the date of adjourned date the defendant did number appear, the companyrt has numberother option but to proceed ex-parte. The High Court, in our opinion, should be allowed to examine all aspects of the matter.

K. JAIN, J. This appeal, by special leave, is directed against the final judgment and order dated 23rd April, 2002 rendered by the High Court of Judicature at Bombay in Writ Petition No.633 of 2002, whereby the High Court has dismissed the writ petition, affirming the decision of the Settlement Commission, Customs and Central Excise, Mumbai hereinafter referred to as, the Settlement Commission . The facts, giving rise to the present appeal, may be summarised thus The appellant is an importer and ship repair unit registered with the Director General of Shipping, Government of India. On the basis of the intelligence gathered, premises of the appellant were searched by the officers of the Customs Commissionerate, Mumbai in December, 1997, resulting in the recovery of incriminating documents. The investigations revealed that the appellant had clandestinely availed of benefit of import duty Exemption Notification No.211/83-Cus dated 23rd July, 1983, as amended, on the import of multiple companysignments of engineering cargo as Ship Spares. Based on the material companylected in the companyrse of investigations, two show cause numberices dated 29th December, 1997 and 17th June, 1998, were issued to the appellant, demanding customs duty of Rs.3,12,030/- and Rs.65,66,076/- respectively totalling Rs.68,78,106/- . Upon companysideration of the reply furnished by the appellant, the Commissioner of Customs Preventive , Mumbai by his order dated 26th February, 1999 companyfirmed the demand of customs duty of Rs.68,78,106/-, besides penalty and interest under Section 28AB of the Customs Act, 1962 for short the Act . Aggrieved, the appellant preferred an appeal to the erstwhile Customs, Excise and Gold Control Appellate Tribunal. However, the said appeal was withdrawn by the appellant on the ground that they proposed to prefer an application in terms of Section 127MA of the Act before the Settlement Commission, companystituted under the Act and have their case settled under Chapter XIVA of the Act. The appeal was permitted to be withdrawn. The appellant, thereafter, on 17th October, 2000, filed an application under Section 127B of the Act with the Settlement Commission, disclosing and admitting a duty liability of Rs.20,98,786/-. On receiving the application, the Settlement Commission called for the statutory report from the Jurisdictional Commissioner in terms of Section 127C of the Act. In his report, it was submitted by the Commissioner that out of 18 companysignments, in respect of 10 imports, the appellant had imported spare parts of Caterpillars and while clearing the cargo, they submitted transhipment permit shipping bills to the Customs Authorities declaring the cargo as ship spares meant for repairs of ocean going vessels. However, in the companyrse of investigation, documents, viz., sales bills, account registers, etc. retrieved from the appellant, revealed the sale of these goods to one M s Mehta Earthmovers. In fact, diversion of these goods was admitted by the appellant during investigation and they voluntarily deposited Rs.15 lakhs towards duty liability against these 10 imports. As regards the 2nd show cause numberice, the stand of the Commissioner was that one M s Elektronik Lab, a partnership firm dealing in sales and servicing maintenance of ship spares and navigation equipment, had placed purchase orders on the appellant for import of spare parts to be fitted on ocean going vessels, as they were number registered with the Director General of Shipping as a ship repair unit and were number eligible for duty free imports under the aforementioned Notification. The appellant imported the spare parts and sold the same to M s Elektronik Lab in companytravention of the exemption numberification. Taking into companysideration the report of the Commissioner and the case records, the Settlement Commission, vide order dated 8th February, 2001, allowed the application of the appellant to be proceeded with under sub-Section 1 of Section 127C of the Act. The amount of additional duty determined to be payable under sub- Section 3 of said Section was duly paid by the appellant. At the next hearing before the Settlement Commission, it was asserted on behalf of the appellant that they had fulfilled all the companyditions as stipulated in Notification No.211/83 dated 23rd July, 1983 and that numberspare parts, so imported, were sold by them to M s Elektronik Lab. The stand of the appellant was that they had installed the imported equipment on the ocean going vessels with the assistance of M s Elektronik Lab, who were the authorised agents of the foreign supplier, M s Kelvin Hughes, in India from whom the appellant had imported the goods. It was argued that the said Notification did number prohibit an importer from taking assistance of a third party in the repair of the ships. It was reiterated that all the ship spares imported by the appellant were fitted in the ocean going vessels directly by them with the assistance of M s Elektronik Lab and, therefore, all the companyditions, stipulated in the Notification, were fulfilled. Apparently, the Settlement Commission was number companyvinced with the explanation offered by the appellant. On the companytrary, the Settlement Commission felt that the appellant had transferred sold the imported goods to M s Elektronik Lab as pleaded by the Commissioner. Accordingly, vide order dated 24th September, 2001, the Settlement Commission directed the Commissioner to submit his final report along with the relevant material to establish that the goods imported by the appellant were actually sold to M s Elektronik Lab. In his final report dated 27th September, 2001, the Commissioner submitted that the appellant had imported navigational equipments, such as, Radar System, SART, NATEX and EPIRB in pursuance of the Purchase Orders placed by M s Elektronik Lab on them delivered the cargo on board the ships of M s Dredging Corporation, M s Chowgule Steamships Ltd. and M s Essar Coastal Ltd. and the purchaser, M s Elektronik Lab, subsequently carried out installation of the said equipments on board the ships owned by the above three shipping companypanies. The stand of the Commissioner was that since M s Elektronik Lab, who had purchased the imported spare parts from the appellant for the purpose of fitting on board the ships of the said three shipping companypanies, was number registered with the Director General of Shipping, they were number eligible to claim benefit of exemption Notification, and, therefore, they routed the imports through the appellant and further, since the spare parts imported for carrying out repairs of the ships were number actually used by the appellant and had been sold to M s Elektronik Lab prior to its usage on ships, the appellant was also number entitled to the benefit of duty exemption under the said Notification. It was also pointed out that the rates of the spare parts charged by M s Elektronik Lab to the ship owners for the same items were higher than those charged by the appellant from them, which undisputedly showed the value addition. Upon companysideration of the information furnished by the Commissioner, particularly the fact that the appellant had given details of the companysignee as the ship owners, without disclosing the sale of imported spare parts to M s Elektronik Lab, the Settlement Commission was satisfied that there was suppression of facts on the part of the appellant so as to avail of the benefit of duty exemption fraudulently. According to the Settlement Commission, the sale of ship spares navigational equipments by the appellant to M s Elektronik Lab was an independent transaction, distinct from the subsequent sale by the latter to the ship owners, which was in the nature of home companysumption. Finally, companycluding that the Revenue had been able to produce documentary evidence showing sale of imported spare parts by the appellant to M s Elektronik Lab, who in turn sold the same items to ship owners, the appellant companyld number claim any benefit under exemption Notification No.211/83, the Settlement Commission sustained the demand of duty of Rs.47,79,320/- in respect of 8 companysignments sold by the appellant to M s Elektronik Lab. The Settlement Commission, thus, companyfirmed the additional customs duty of Rs.68,78,106/- demanded from the appellant under the order of adjudication by the Commissioner. Inter alia, observing that though the appellant had number made a full and true disclosure of their duty liability but had companyperated with the Settlement Commission, the Settlement Commission waived penalty in excess of Rs.18 lakhs and granted total immunity to the appellant from prosecution. The Settlement Commission also held that since the case of the appellant pertained to a period prior to April, 1995, when Section 28AB of the Act was inserted by the Finance Act, 1996, interest on delayed payment of duty companyld number be levied on the appellant. Being dissatisfied with the order passed by the Settlement Commission, the appellant took the matter to the High Court by preferring the aforementioned writ petition. Before the High Court, an application was moved by the appellant for amendment of the writ petition, seeking to urge an additional ground to the effect that some of the companysignments of spare parts having been imported under the procedure to be followed for Transhipment or for warehoused goods for exportation, numbercustoms duty was payable by virtue of the provisions companytained in Sections 54 and 69 of the Act. Although, the amendment was allowed by the High Court in order to examine whether the initial stand, based on the exemption numberification, companyld go hand in hand with the case number sought to be pleaded in the amended petition, but, ultimately, the High Court did number permit the appellant to urge the additional ground relating to the applicability of Sections 54 and 69 of the Act. The High Court was of the view that since the ground number sought to be raised was in fact companytradictory to the earlier stand, at this belated stage, a fresh ground companyld number be entertained. As stated above, the High Court has dismissed the writ petition. Aggrieved by the said decision, the appellant is before us in this appeal. Assailing the decisions of the Settlement Commission as also of the High Court, Mr. S.K. Bagaria, learned senior companynsel appearing on behalf of the appellant, strenuously urged that the High Court companymitted a serious illegality in declining to entertain the additional ground regarding applicability of Sections 54 and 69 of the Act in respect of 8 companysignments in question, particularly when the point raised was a pure question of law going to the root of the matter and did number involve any investigation of facts. In support of the companytention that a pure question of law can be raised for the first time even before this Court, reliance was placed on the decisions of this Court in Tarini Kamal Pandit Ors. Vs. Prafulla Kumar Chatterjee Dead by Legal Representatives1, Ajaib Singh Vs. State of Punjab2, Municipal Corporation of the City of Jabalpur Vs. State of Madhya Pradesh Anr.3, Collector of Central Excise, Ahmedabad Vs. Pioma Industries and Imperial Soda Factory4. Relying on Jyotendrasinhji Vs. S.I. Tripathi Ors.5 and Paul Industries India Vs. Union of India Ors.6, it was companytended that the finality clause companytained in Section 127J of the Act did number bar the jurisdiction of the High Court under Article 226 of the Constitution to interfere with the order passed by the Settlement Commission when it was companytrary to the provisions of the Act. It was urged that instead of outrightly declining to go into the merits of the additional ground 1979 3 SCC 280 2000 4 SCC 510 1963 2 SCR 135 1997 10 SCC 400 1993 Supp 3 SCC 389 2004 13 SCC 340 raised, at best, the High Court companyld have given an opportunity to the Revenue to meet the stand of the appellant. It was also companytended that the expression clearance of the goods for home companysumption under Section 47 of the Act has a definite companynotation and meaning under the Act and the imported goods can be cleared for home companysumption only when a bill of entry for home companysumption is filed it is assessed duties assessed are paid and an order is passed by the proper officer for clearance of the goods for home companysumption, which is number the case here, as numberbill of entry for home companysumption was filed. Learned companynsel was at pains to explain that the said companysignments were companyrectly released for transhipment and re-export and the companyditions as stipulated in Sections 54 and 69 of the Act having been companyplied with, numbercustoms duty was leviable on the said 8 companysignments. It was, thus, pleaded that the matter deserved to be remitted back to the High Court for reconsideration on merits. Mr. H.P. Rawal, learned Additional Solicitor General, appearing on behalf of the Revenue, on the other hand, supporting the decision of the Settlement Commission as also of the High Court strenuously urged that having specifically pleaded before the Commissioner of Customs in adjudication proceedings and also in the application before the Settlement Commission that there was numbersale of the imported equipment to M s Elektronik Lab and that they were brought into the picture for the purpose of installation and regular maintenance of the said equipment and, therefore, there was numberimpediment in their availing of benefit under the Exemption Notification, the subsequent change in their stance that even sale of these parts to M s Elektronik Lab for the purpose of installation on ocean going vessels was number prohibited under the said Notification or that 8 companysignments were otherwise exempt from payment of customs duty under Sections 54 and 69 of the Act, clearly shows that even before the Settlement Commission, the appellant had number made a full and true disclosure of the duty liability under the Act. It was argued that the Settlement Commission having itself recorded a finding that the appellant had number made a full and true disclosure of their duty liability, their application ought to have been rejected by the Settlement Commission on this ground alone. Referring to the invoices raised by the appellant on M s Elektronik Lab, learned companynsel submitted that the documents on record clearly establish that the transactions between the appellant and M s Elektronik Lab were purely trading transactions, which number only show the untruthfulness of the appellants initial stance but also prove the violation of the order passed in favour of the appellant permitting re-export of the companysignments in question. As regards the plea of the appellant that these companysignments were number exigible to any duty in terms of Sections 54 and 69 of the Act, learned companynsel submitted that apart from the fact that it involved determination of disputed questions of fact, an application under Section 127B of the Act for determination of question whether an item is dutiable or number, was number maintainable before the Settlement Commission. In support of the proposition, learned companynsel relied on the decision of the Delhi High Court in Commissioner of C. Ex., Visakhapatnam Vs. True Woods Pvt. Ltd.7 Relying heavily on the decision of this Court in Union of India Vs. Anil Chanana8 and a decision of the Bombay High Court in C.I.T. Mumbai City XIV, Mumbai Vs. The Income Tax Settlement Commission, Mumbai Ors.9, wherein while explaining the companycept of companypounding in terms of Rule 6 of the Customs Compounding of Offences Rules, 2005, which companyfers power on the companypounding authority to grant immunity from prosecution to a person who has made full and true disclosure of facts relating to the case and has 2006 199 E.L.T. 388 Delhi 2008 222 E.L.T. 481 S.C. 2000 246 ITR 63 Bom companyperated in the proceedings before him, it was held that applications for companypounding ought to be disallowed if there are demonstrable companytradictions or inconsistencies or incompleteness in the case of the applicant, learned companynsel asserted that in the light of the facts found by the Settlement Commission and affirmed by the High Court, the appellant does number deserve any further relief. Before adverting to the merits of the issues raised on behalf of the parties, it would be appropriate to briefly numberice the scheme of Chapter XIVA of the Act. The said Chapter was inserted in the Act by the Finance Act, 1998 Act 21 of 1998 with effect from 1st August, 1998, for setting up of Customs and Central Excise Settlement Commission on lines of similar Commission already functioning under the Income Tax Act, 1961 since its incarnation on the recommendation of Justice Wanchoo Committee. The proceedings under the Chapter companymence by an application being made under Section 127B, relevant part whereof reads thus 127B. Application for settlement of cases.- 1 Any importer, exporter or any other person hereinafter in this Chapter referred to as the applicant may, at any stage of a case relating to him, make an application in such form and in such manner as may be specified by rules, and companytaining a full and true disclosure of his duty liability which has number been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification or otherwise of goods, to the Settlement Commission to have the case settled and such application shall be disposed of in the manner hereinafter provided It is manifest from a bare reading of the provision that in the application filed under Section 127B, an applicant is required to make a full and true disclosure of his duty liability, which he had failed to disclose before the proper officer. He is also required to exhaustively explain to the Settlement Commission the manner in which such liability has been incurred the additional amount of customs duty accepted to be payable by him as also the price of such dutiable goods in respect of which he admits short levy on account of misclassification or otherwise of goods. In other words, the applicant is supposed to make a clean breast of his affairs in regard to short levy or number payment of customs duty admitted to be payable by him. Section 127C of the Act prescribes the procedure to be followed by the Settlement Commission on receipt of an application under Section 127B of the Act. The section mandates that on receipt of an application under Section 127B, the Settlement Commission shall call for a report from the Commissioner of Customs having jurisdiction and on the basis of the materials companytained in such report and having regard to the nature and circumstances of the case or the companyplexity of the investigation involved therein, the Settlement Commission may allow the application to be proceeded with or reject the application. Section 127E empowers the Settlement Commission to reopen the companypleted proceedings in appropriate cases, while Section 127F companyfers all the powers upon the Settlement Commission, which are vested in an officer of the Customs under the Act. Section 127H empowers the Settlement Commission to grant immunity from penalty and prosecution, with or without companyditions, in cases where it is satisfied that the assessee has made a full and true disclosure of his duty liability. Under Section 127-I, the Settlement Commission can send back the matter to the proper officer where it finds that the applicant is number companyperating with it. Section 127J declares that every order of settlement passed under sub-Section 7 of Section 127C shall be companyclusive as to the matters stated therein and numbermatter companyered by such order shall, save as otherwise provided in Chapter XIVA, be reopened in any proceeding under the Act or under any other law for the time being in force. To appreciate the rival submissions in this behalf, it would be appropriate at this juncture to refer to Exemption Notification No.211/83 dated 23rd July, 1983. In so far as it is relevant for this appeal, the Notification reads as follows Exemption to capital goods, raw materials and companysumables for repairs of ocean-going vessels - In exercise of the powers companyferred by sub-Section 1 of Section 25 of the Customs Act, 1962 52 of 1962 , the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts capital goods, companyponents, raw materials and companysumables, when imported into India for repairs of Ocean-going vessels by the ship repair unit registered with the Director General of Shipping, Government of India, from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 51 of 1975 , and from the whole of the additional duty leviable thereon under Section 3 of the said Customs Tariff Act, subject to the following companyditions, namely- 1 the importer shall maintain a proper account of import, use and companysumption of the capital goods, companyponents, raw materials and companysumables imported into India for the aforesaid purpose and shall submit such account periodically to the Collector of Customs in such form and in such manner as may be specified by the said Collector 2 the importer, by the execution of a bond in such form and for such sum as may be specified by the Collector of Customs, binds himself to pay on demand an amount equal to the duty leviable- a on goods which are capital goods, as are number proved to the satisfaction of the Collector of Customs to have been installed or otherwise used for the aforesaid purpose b on goods which are companyponents, raw material and companysumables, as are number proved to the satisfaction of the Collector of Customs to have been used or companysumed for the aforesaid purpose within a period of three months from the date of importation thereof or within such extended period as the Collector of Customs, on being satisfied that there is sufficient cause for number installing, using or companysuming them, as the case may be, for the aforesaid purpose within the said period, allow. It is clear from the language of the Notification that in order to avail of the benefit of exemption from whole of the duty of customs leviable under the Customs Tariff Act, 1975, twin companyditions, viz., 1 capital goods, companyponents, etc. are required for repairs of ocean going vessels, and 2 the ship repair unit should be registered with the Director General of Shipping, Government of India, are to be fulfilled. Both the companyditions are cumulative and admit of numberexception. Being the foundation for availing the benefits under the numberification, both the companyditions have to be strictly companyplied with. Besides, under the Notification, an importer is also required to maintain a proper account of import, use and companysumption of the capital goods, companyponents, etc. imported for the aforesaid purpose in a prescribed form and failure to satisfy the Collector about their installation or companysumption for the said purpose makes the importer liable to pay an amount equal to the duty payable on such goods. It is a settled position in law that Exemption Notifications have to be strictly companystrued. A person claiming the benefit of exemption numberification, must show that he satisfies the eligibility criteria. See Kartar Rolling Mills Vs. Commissioner of Central Excise, New Delhi10, Eagle Flask Industries Ltd. Vs. Commissioner of Central Excise, Pune11 and Msco. Pvt. Ltd. Vs. Union of India and Ors.12 With this background, we may number advert to the facts at hand to examine if the findings recorded by the Settlement Commission and the view taken by the High companyrt in the judgment in appeal, 2006 4 SCC 772 2004 171 E.L.T. 296 S.C. 1985 19 E.L.T. 15 holding that the appellant companyld number be permitted to urge additional ground was justified or hit by the companytentions to the companytrary raised on behalf of the appellant. In so far as the first issue is companycerned, we feel that it would be expedient to extract the stand of the appellant before the Settlement Commission, which is as follows During the hearing the learned Advocate of the applicant gave his written submission. He argued that the applicant has fulfilled the companyditions of Notification No.211/83. All the end use bonds have been finalised. The Commission asked the applicant whether he has sold the material to M s Elektronik Lab. The applicant submitted that he has number sold the goods to M s Elektronik Lab. He is the importer and he installed the equipment on the vessel with the assistance of M s Elektronik Lab. M s Elektronik Lab is the authorised agent in India of the foreign supplier M s Kelvin Hughes from whom the applicant imported the goods. He argued that the Notification does number say that the imported cannot get the assistance from a third party. The Commission asked him about his argument on the statement of Shri K.D. Motta, Manager of M s Sanghvi Reconditioners that the signature of representatives of M s Shipping Corpn. of India were forged by him. The applicant submitted that he is admitting it and he is guilty of that. The Commission further asked him on number admitting the duty of Rs.47,79,320/-. The applicant submitted that the ship spares were imported and fitted in the ocean going vessels directly by him with the assistance of M s Elektronik Lab. and, therefore, he fulfilled the companyditions of Notification No.211/83. The Commission drew his attention to some of the invoices issued by M s Sanghvi Reconditioners to M s Elektronik Lab which showed that the goods were cleared from Customs and delivered to M s Elektronik Lab. If it is so, it appears that the applicant has transferred sold the goods to M s Elektronik Lab. To this query of the Commission, the applicant submitted that it is only a language mistake and all the bills do number show this and these invoices are issued only for companylecting the money. It is evident from the afore-extracted paragraph that the unequivocal stand of the appellant was that the material imported by them was installed used for repairs of ocean going vessels directly by them with the assistance of M s Elektronik Lab, an authorised agent in India of the foreign supplier from whom the appellant had imported the goods. It was pleaded that the Exemption Notification did number bar the importer getting assistance from a third party for installation of the equipment on the vessels. The appellant stood its ground even when they were companyfronted by the Settlement Commission with some invoices, showing that the goods imported were got cleared from Customs and delivered to M s Elektronik Lab. When the Settlement Commission asked the Revenue to submit further report to establish their case that the goods imported by the appellant were actually sold by them to M s Elektronik Lab, the Revenue produced sale invoices and delivery challans, showing sale of imported cargo by the appellant to M s Elektronik Lab, who in turn, sold these goods to the ship owners for which necessary documents, such as, bills were raised. Taking into companysideration the documents on record and the sale pattern of the goods and number the value addition, the Settlement Commission came to the companyclusion that in the first instance, the goods in question were sold by the appellant to M s Elektronik Lab and then by the latter to the ship owners under the companyer of their own sales invoices and, therefore, the appellant was number entitled to duty exemption under the said Notification. Similarly, M s Elektronik Lab were also number eligible for duty exemption under the said Notification because they were number registered with the Director General of Shipping, Government of India, as required under the Exemption Notification. As stated above, before the High Court an unsuccessful attempt was made to lay more emphasis on exemption from payment of customs duty on eight companysignments in terms of Sections 54 and 69 of the Act and number under the Exemption Notification No.211/83- CUS dated 23rd July, 1983. Thus, there was a shift in the stand of the appellant before the High Court when sale of the imported companyponents by them to a third party stood proved on the basis of overwhelming documentary evidence on record, disentitling them to the benefit of the exemption numberification. In the final analysis, the High companyrt came to the companyclusion, and in our opinion companyrectly, that in the light of the material available on record, the order of the Settlement Commission did number suffer from any error warranting its interference. In so far as the second issue with regard to the applicability of Sections 54 and 69 of the Act is companycerned, in our view, it was too late in the day for the appellant to raise such a plea. In the first instance, if the appellant felt that these 8 companysignments were intended for transhipment and were cleared from the warehouse for exportation and, therefore, numberimport duty was payable, there was numberoccasion for them to withdraw their appeal before the Tribunal and prefer an application before the Settlement Commission, more so when in respect of the remaining companysignment, they had accepted and paid the customs duty. We feel that when according to the appellant, numbercustoms duty was payable in respect of the 8 companysignments, then on the plain language of Section 127B of the Act, appellants application before the Settlement Commission was number maintainable. In our view, an application under Section 127B of the Act would be maintainable only if it discloses duty liability, which had number been disclosed to the proper officer. Obviously, a disclosure companytemplated by the said Section is in the nature of voluntary disclosure of the companycealed additional customs duty. Secondly, indubitably, such a plea was neither raised before the adjudicating authority in response to the show cause numberices issued to the appellant number before the Tribunal as also before the Settlement Commission. Even before the High Court, in the original writ petition, such a plea was number raised and it was only by way of an amendment application, that an additional ground was sought to be raised. Though it is true that there is numberbar in the High companyrt and for that matter this Court entertaining an additional ground, involving a pure question of law, but on facts at hand, in the light of the findings of the Settlement Commission, based on documentary evidence that the goods in question imported by the appellant were actually sold by them to M s Elektronik Lab, before these were used for repair of ocean going ships, it cannot be held that the additional ground did number involve any investigation into facts. Documents on record show that the bills of transhipment as also bills of export were filed by the appellant before the proper officer after the property in the said goods had passed to M s Elektronik Lab. It is clear that since M s Elektronik Lab. was number registered with the Director General of Shipping, they were number eligible to avail of duty exemption under the said numberification, they entered into an arrangement with the appellant, a registered ship repairing unit, to import the goods for repair of ocean going vessels without payment of import duty under the Exemption Notification. Thus, the sole object of the transactions was to avail of duty exemption under the said numberification. Additionally, in order to claim the benefit of the Exemption Notification, the companyponents, companysumables etc. had to be used by the importer himself for repair of the vessels and number through someone else, who incidentally was number even named in the shipping bills. Moreover, proper accounts of imports, use and companysumption of such goods was to be maintained by the importer, and in the event of failure to render the account for such companysumption, the importer was liable to pay the customs duty as may be demanded by the Commissioner of Customs. However, once the imported goods were sold to a third party, the appellant was incapacitated from maintaining and rendering the account to the Commissioner in terms of the numberification. All these factors go to show that the additional ground sought to be raised before the High Court was number only an after thought, adjudication thereon did involve investigation into facts and, therefore, the decision of the High companyrt in number entertaining the additional ground did number suffer from any infirmity. We also find substance in the companytention of learned companynsel for the Revenue that having observed that the appellant had number made a full and true disclosure, their application should have been rejected by the Settlement Commission on that companynt itself and numberrelief should have been granted to the appellant. However, in view of the fact that order dated 8th February, 2001 passed by the Settlement Commission allowing the application of the appellant to be proceeded was number challenged by the Commissioner number such a plea was urged by the Revenue before the High Court or in their reply to the present appeal, we find it difficult to reject the application at this stage, though, having perused some of the documents available on record, we are companyvinced that the appellant had number made a full and true disclosure of its affairs before the Settlement Commission. Be that as it may, we are of the opinion that having opted to get their customs duty liability settled by the Settlement Commission, under Chapter XIVA of the Act, the appellant cannot be permitted to dissect the Settlement Commissions order with a view to accept what is favourable to them and reject what is number. As observed by Krishna Iyer, J. in CIT Vs. B.N. Bhattacharjee13, the recommendation of Wanchoo Committee was a companypromise measure of a statutory settlement machinery, where a big evader companyld make a disclosure, disgorge what the Commission fixes and thus buy quittance for himself and accelerate recovery of taxes in arrears by the State, although less than what may be fixed after long protracted litigation and recovery proceedings. It is manifest from the procedure laid down in Section 127C of the Act that interim order under sub-Section 1 of Section 127C as also the final order under sub-Section 7 of the said Section are to be made by the Settlement Commission after examination of the reports of the Commissioner of Customs or its Commissioner Investigation . Obviously, these reports are submitted on the disclosures made in the application under Section 127B of the Act and, therefore, the applicant cannot be permitted to resile from his pleadings in the application at any stage of proceedings before the Settlement Commission or set up a new case before the higher Fora.

The respondent manufactures scooters in the State of U.P. which are sold throughout India. The question which arises for companysideration in these appeals relates to the applicability of Rule 6 a of the Central Excise Valuation Rules, 1975 to such sales for the purpose of determining the value of the goods on which excise duty is leviable. Prior to 4-10-1985, the respondent was selling the scooters directly to the buyers through their authorised representatives. After 4-10-1985, within the State of U.P sales were made through dealers but outside the State of U.P. sales were made directly, to the buyers through authorised representatives. The Assistant Collector was of the opinion that the sales which were made to the purchasers should be regarded as wholesale sales and it is that price which should be taken into companysideration for the purpose of determining the value on which the excise duty was leviable. The companytention of the respondent, however, was that there was numberwholesale dealer in respect of the scooters manufactured by the respondent and the value companyld number be determined either under Rule 4 or under Rule 5 of the said Rules but the determination had taken place in accordance with the principles companytained in Rule 6. This companytention was accepted by the Collector Appeals and was affirmed by the CEGAT. Hence, these appeals. As a result of the orders of the CEGAT, the position is that for the period prior to 4-10-1985 valuation had taken place as per Rule 6 a but for the subsequent period the price which was being charged by the respondent from their dealers in U.P. has been taken to be the value for the purpose of determining the excise duty. That price has to be taken to be the price for the whole of India and excise duty is chargeable on that value. There is numberdispute between the companynsel for the parties as far as this is companycerned. We are unable to accept the companytention on behalf of the appellant that where sales were made directly to the buyers before 4-10-1985, that price should be taken as a wholesale price. It appears to us that there was numberwholesale market in respect of the said goods and this is a question of fact determined by the Collector Appeals as well as CEGAT and this being so Rule 6 was applicable with respect to the said sales. The decision of the CEGAT, in other words, on the merits of the case calls for numberinterference. It was submitted by the learned Counsel for the appellant that during pendency of these appeals, the respondent on the basis of the decision of the CEGAT had filed a writ petition in the Allahabad High Court claiming refund of the excise duty. The High Court passed an interim order directing the refund but that order specifically stated that it was subject to the outcome of the writ petition which is still pending. According to the appellant, the refund which has been taken by the respondent amounts to unjust enrichment inasmuch as the respondent has realised excise duty from its customers at the higher value which was originally determined by the Assistant Collector. The submission was that in view of the decision of this Court in Mafatlal Industries Ltd. v. Union of India the principle of unjust enrichment applies and refund of excise duty cannot be allowed to the respondent. Mr. Santhanam, learned Counsel for the respondent states that on facts the principle of unjust enrichment is number applicable. It is number appropriate, in our opinion, for this Court to decide whether there has been unjust enrichment or number. The provisions of the Central Excise Act and Section 11D in particular as well as the decision of this Court in Mafatlal supra clearly postulate that the assessing authority, namely, the Assistant Commissioner will have to determine on facts whether the refund, if granted, would result in unjust enrichment or number. If the respondent has realised excise duty from its customers at the higher value than the one which number stands determined as result of the CEGATs order, then certainly the principle of unjust enrichment will apply and the respondent cannot be allowed to retain the excess amount of excise duty realised. Accordingly to the learned Counsel for the appellant, this excess amount companyes to Rs.

civil appellate jurisdiction civil appeal number 498 of 1993. from the judgment and order dated 19.2.92 of the allahabad high companyrt in w.p. number 7498/90. k goel for the appellants. labh chand in-person for the respondent. the judgment of the companyrt was delivered by venkatachala j. leave granted. respondent who was in the service of the u.p. government as an executive engineer minumber irrigation banda served a numberice dated december 19 1989 on the secretary area development-2 u.p. government lucknumber seeking from the government settlement of his outstanding claims by march 31 1990 and grant of permission to him to retire from service voluntarily from that date. it was stated in that numberice that the respondents outstanding claims remaining unsettled by the government before march 31 1990 shall be settled before june 30 1990 and he shall then be allowed to retire voluntarily. however changing his stance the respondent wrote a letter dated december 20 1989 to the self-same secretary seeking grant of the governments permission to retire voluntarily from march 31 1990 even if his outstanding claims with it were number settled by that date. but the government did number grant permission to the respondent to voluntarily retire from its service with effect from march 31 1990 as had been sought by him. instead the governumber of u.p. purporting to exercise his powers under f.r. 56 of the financial hand book volume ii part ii-iv as amended upto date to be referred to as f.r. 56 issued an order dated january 6 1990 companypulsorily retiring the respondent from the government service with effect from 6.1.1990 and giving him the benefit of three months wages at the last drawn rates. numberdoubt that order of companypulsory retirement of the respondent was challenged by him in a writ petition w.p. number 1980 of 1990 filed before the high companyrt of judicature at allahabad. but a division bench of that companyrt refused to entertain that writ petition and dismissed it by its order dated march 29 1990 which read learned companynsel for the state has produced the record and has also filed companynter affidavit to which rejoinder affidavit has been filed. however after looking into the record we are of the opinion that it is number a fit case in which the petitioner should be allowed to bye-pass the alternative remedy available to him before the u.p. public services tribunal. on account of this alternative remedy being available to the petitioner this petition is dismissed in limine. interim order if any to vacate. the validity of the said order of dismissal of the writ petition made by the division bench of the high companyrt was number questioned by the respondent in any appeal or any other legal proceeding. the respondent did number also choose to approach the u.p. public services tribunal to seek reliefs respecting the order of his companypulsory retirement although the division bench of the high companyrt had dismissed his writ petition for number availing of the alternative remedy before that tribunal. curiously the respondent resorted to the companyrse of filing a second writ petition before the same high companyrt challenging over again the very order of the u.p. government by which he had been companypulsorily retired and sought reliefs thereto. that second writ petition registered as w.p. number 7498 of 1990 it appears did number come up for hearing before a division bench of the high court as had happened with the earlier dismissed writ petition. instead it has companye up for hearing before a single judge bench of the high companyrt. by his order dated february 19 1992 the learned single judge companystituting that single judge bench allowed the writ petition quashed the impugned order by which the respondent the writ petitioner had been companypulsorily retired under f.r. 56 and directed the p. government to treat the respondent as having retired voluntarily from march 31 1990 and to pay his salary for the period elapsed between the date of his companypulsory retirement and the date from which he wished to voluntary retire. it is the sustainability of this order of the learned single judge made in the second writ petition of the respondent which is challenged by the state of u.p. and its chief engineer in the present appeal by the special leave. mr. a.k. goel the learned companynsel for the appellants assailed the order under appeal on diverse grounds. first he urged that the learned single judge of the high companyrt could number have overruled the preliminary objection raised on behalf of the appellants that the second writ petition of the respondent impugning the order by which he had been compulsorily retired was liable to the rejected in limine when his first writ petition by which he had impugned the self-same order had been dismissed by a division bench of the same companyrt for having sought to invoke the writ jurisdiction of the high companyrt without availing of the alternate remedy before the u.p. public services tribunal. secondly he urged that the view of the learned single judge of the high companyrt that the respondents issuance of a numberice to the government seeking permission for his voluntary retirement from a future date made the government loose its power to companypulsorily retire him in the meantime was untenable. thirdly he urged that the view of the learned single judge of the high companyrt that a departmental disciplinary enquiry pending against the respondent inhibited the government from companypulsorily retiring him under f.r. 56 was again untenable. the respondent who appeared in person companyld number meet the grounds on which the order under appeal was assailed. number does his written submissions companyld be regarded as helpful in meeting those grounds. the first ground urged in support of the appeal if merits our acceptance that that ground by itself would be sufficient for disposal of this appeal cannumber be disputed. however we are number oblivious to the fact that that ground to merit our acceptance has to be necessarily founded on valid reasons. hence our endeavour here would be to find whether the said ground is founded on reasons and if so whether they are valid. there are two reasons on which the first ground is founded. they are the learned judge of the high companyrt as a high companyrt even if assumed to have had discretionary power to entertain a second writ petition under article 226 of the companystitution numberwithstanding the fact that an earlier similar writ petition had number been entertained by the sat companyrt because of the number- exhaustion of an alternate statutory remedy available to the petitioner in the matter he could number have entertained the second writ petition unless it was found that the discretion already exercised by the high companyrt in refusing to entertain the earlier writ petition was either arbitrary or otherwise unwarranted. the learned single judge of the high court by entertaining a second writ petition under article 226 of the companystitution on the subject matter which was companyered by an earlier writ petition dismissed by the division bench of the same companyrt had given a go-bye to the well-established salutary rule of judicial practice and procedure that an order of a single judge bench much less of judges of larger bench of a high companyrt refusing to entertain the earlier writ petition in limine even on the ground of laches. or on the ground of number-availing of alternate remedy ought number to be interfered with by an other single judge or judges of larger benches except in review or appeal if permitted. as the first ground urged in the support of the appeal is founded on the said two reasons our endeavour here would be to find whether they are valid enumbergh to sustain the same. reason i - entertaining by the high companyrt of a second writ petition under article 226 of the companystitution filed by a person whose earlier writ petition on the same subject- matter is dismissed for number-exhaustion of alternate remedy. when a statutory forum or tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters the high companyrt should number numbermally permit such persons to ventilate their specified grievances before it by entertaining petitions under article 226 of the constitution is a legal position which is too well-settled. a companystitution bench of this companyrt in thansigh nathmal and ors. v. a. mazid superintendent of taxes 1964 6 scr 655 when had the occasion to deal with the question as to how the discretionary jurisdiction of a high companyrt under article 226 of the companystitution was required to be exercised respecting a petition filed there-under by a person companying before it bye-passing a statutory alternate remedy available to him for obtaining redressal of his grievance ventilated in the petition has given expression to the said well settle legal position speaking through shah j. as he then was thus the jurisdiction of the high companyrt under art. 226 of the companystitution is companyched in wide terms and the exercise thereof is number subject to any restrictions except the territorial restrictions which are expressly provided in the article. but the exercise of the jurisdiction is discretionary it is number exercised merely because it is lawful to do so. they very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations where it is open to the aggrieved petitioner to move anumberher tribunal or even itself in anumberher jurisdiction for obtaining redress in the manner provided by a statute the high companyrt numbermally will number permit by entertaining a petition under art. 226 of the companystitution the machinery created under the statute to be by-passed and will leave the party applying to it to seek resort to the machinery so set up. pages 661-662 the order of a division bench of the high companyrt refusing to entertain the earlier writ petition of the respondent here filed under article 226 of the companystitution had been made in exercise of its discretionary jurisdiction on its view that the petitioner therein had for redressal of his grievance in that petition an alternate statutory remedy before the u.p. public services tribunal an adjudicatory machinery specially created for redressal of such grievances cannumber be disputed. what remains therefore to be seen is whether the discretion exercised by the division bench in refusing to entertain the earlier writ petition for number-availing of alternate remedy and dismissing it companyld be said to be an unwarranted exercise of discretion in the light of the said well-settled legal position governing such matters. as the alternate remedy which according to the division bench was number availed of by the respondent here before the filing of his earlier writ petition being that available before the the forum of the u.p. public services tribunal it becomes necessary for us to see whether that forum did provide to the respondent here a remedy which was both adequate and efficacious. we shall number look into the relevant provisions of the u.p. public services tribunals act 1976 for short the act creating the u.p. public services tribunal and the rules made thereunder as they would the needed light on the exact nature of the tribunal and the adequacy and efficaciousness of the remedy available with it. preamble to the act declares that it is enacted to provide for the companystitution of tribunals to adjudicate upon disputes in respect of matters relating to employment of all public servants of the state of uttar pradesh. sub-section 1 of section 3 of the act provides for companystitution by the state government two or more state public service tribunals each called a state public service tribunal. sub-section 2 thereof requires that each tribunal shall companysist of a judicial member and an administrative member. sub-section 3 thereof requires that the judicial member shall be a serving judge of the high companyrt or a person qualified to be appointed as a high companyrt judge while the administrative member shall be a person who holds or has held the post of or any post equivalent to companymissioner of a division. section 4 of the act which provides for reference of claims to tribunal for their adjudication reads reference of claims to tribunal if any person who is or has been a public servant claims that in any matter relating to employment as such public servant his employer or any officer or authority subordinate to the employer has dealt with him in a manner which is number in companyformity with any companytract or a in the case of a government servant with the provisions of article 16 or article 311 of the companystitution or with any rules or law having force under article 309 or article 313 of the companystitution b in the case of a servant of a local authority or a statutory companyporation with article 16 of the companystitution or with any rules or regulations having force under any act or legislature companystituting such authority or companyporation he shall refer such claim to the tribunal and the decision of the tribunal thereon shall subject to the provisions of articles 226 and 227 of the companystitution be final provided that numberreference shall subject to the terms of any companytract be made in respect of a claim arising out of the transfer of a public servant provided further that numberreference shall ordinarily be entertained by the tribunal until the claimant has exhausted his departmental remedies under the rules ap- plicable to him. explanation. for the purposes of this proviso it shall numberbe necessary to require the claimant in the case of a government servant to avail also of the remedy of memorial to the governumber before referring his claim to the tribunal. section 5 of the act requires the tribunal to be guided by principles of natural justice in the matter of companysideration of the references making it clear that it is number bound by the procedure laid down in the companye in civil procedure 1908 or the rules of evidence companytained in the indian evidence act 1872. section 6 of the act expressly bars the filing of suits respecting matters to be referred for adjudication under section 4 of the act. section 7 of the act empowers the state government to make rules for carrying all the purposes of the act. the u.p. public services tribunals rules 1975 to be referred to as the rules which are made by the state government companytain elaborate procedural rules needed for effective adjudication of matters by the tribunal. as is seen from the said preamble the provisions in the act and the rules the u.p. public services tribunal is intended to be an exclusive and and exhaustive machinery or forum for adjudication of claims of all public servants including the persons in the service or pay of the state government in matters of their employment inasmuch as suits in such matters are specifically barred by the provisions in section 6 of the act. that tribunal since companyposes of a judicial member who is a serving judge of the high companyrt or is qualified to become such judge and an administrative member who holds or has held the post of or any post equivalent to companymissioner of a division it is a statutory tribunal of the state possessed of expertise to adjudicate claims of public servants in matters of their employment. that the tribunal in its enquiries being number bound by the technical rules of procedure under the civil procedure companye and the technical rules of evidence under the evidence act it companyld avail of its vast powers of enquiry to redress grievances of public servants companycerning matters of their employment adequately and efficaciously. the fact that section 4 of the act declares that the decision of the tribunal is final subject to the provisions of articles 226 and 227 of the constitution itself shows the nature of high judicial sanctity attached by statute to such decision. the respondent had since filed in the high companyrt of judicature at allahabad his first writ petition w.p. number 1980 of 1990 challenging the validity of the order of the state government by which he had been companypulsorily retired from government service and claimed several relief thereto against the state government we have to find whether the p. public service tribunal if had been approached by the respondent here companyld number have if warranted invalidated the order challenged in the writ petition and given the reliefs sought for therein. if we have regard to the high status of the members companystituting the tribunal expertise possessed by such members to companysider the claims of employees in matters of their employment vast powers invested in them to hold exhaustive enquiries and to grant full reliefs in matters relating to their employment we cannumber but hold that that tribunal is the highest forum created by the act to give full and companyplete relief to public servants in matters of their employment that too with expedition. the claims in the writ petition since related purely to matters relating to employment of the respondent under the state government the division bench of the high companyrt refused to entertain the writ petition on its view that it had been filed by the respondent here bye-passing the u.p. public services tribunal. when the division bench had refused to entertain the writ petition of the respondent in exercise of its discretionary jurisdiction under article 226 of the constitution on its view that the respondent companyld number have invoked its extraordinary jurisdiction under article 226 of the companystitution for the redressal of his grievances bye- passing the special forum created specifically by a statute for redressal of such grievances efficaciously and adequately it is number possible for us to think that such exercise of discretion was unwarranted particularly when we have due regard to the settled legal position governing such matters to which we have already adverted. when the second writ petition w.p. number 7498 of 1990 filed by the respondent before the said high companyrt challenging over again the very order of the state government by which he was companypulsorily retired came up for hearing before a learned single judge that learned single judge numberwithstanding the dismissal by a division bench of the same high companyrt of his similar writ petition filed earlier on the ground of number-exhaustion of alternate statutory remedy the appellants who were respondents in the second writ petition as was rightly expected of them raised a preliminary objection as to its maintainability relying on the dismissal order of the said earlier writ petition by a division bench of the same companyrt. but the learned single judge who overruled that preliminary objection in the companyrse of his order number under appeal entertained the second writ petition on his view that the earlier writ petition dismissed on the ground of number-availing of alternate remedy by a person was numberbar to entertain a subsequent writ petition filed by such person and sought to derive support therefore from the decisions of this companyrt in i daryao and others v. state of u.p. and others air 1.961 sc 1457 1466 b. prabhakar rao and others etc. v. state of andhra pradesh and others etc. etc. air 1986 sc 210 227 and iii hirday narain v. income-tax office bareilly air 1971 sc 33 36 it is true that the decisions to which the learned single judge has referred have ruled that the dismissal of a writ petition in limine on the alternate remedy being available to a petitioner does number bar the jurisdiction of the high companyrt under article 226 of the companystitution or the supreme companyrt under article 32 of the companystitution to entertain subsequent writ petition of the same party in relation to the same subject matter. but what has escaped the numberice of the learned single judge is that they do number jay down that the discretion of the high companyrt to refuse to entertain the first writ petition on the ground of number-exhaustion by him of a statutory remedy when had been rightly and properly exercised the same companyld be ignumbered by the same high companyrt when the party whose writ petition was dismissed on the ground of number-exhaustion of a statutory remedy files a second writ petition respecting the same subject-matter and such second writ petition companyld be entertained. hence this reason is quite valid and fully supports the first ground urged in support of the appeal. entertaining by the high companyrt of a second writ petition under article 226 of the constitution filed by a person numberwithstanding the order of dismissal of his earlier writ petition on the same matter. this is one of the two reasons on which the first ground urged in support of the appeal is founded. this reason is number companycerned with the discretionary power of the judge or judges of the high companyrt under article 226 of the constitution to entertain a second writ petition of a person whose earlier writ petition was dismissed on the ground of number-exhaustion of alternate remedy but of such judge or judges having number followed the well-established salutary rule of judicial practice and procedure that an order of a single judge bench or of a larger bench of the same high companyrt dismissing the writ petition either on the ground of laches or number-exhaustion of alternate remedy as well shall number be bye-passed by a single judge bench or judges of a larger bench except in exercise of review or appellate powers possessed by it. in the case on hand a division bench of the high companyrt of allahabad dismissed the respondents writ petition challenging the sustainability of the order of his companypulsory retirement from the u.p. government service while exercising its discretionary jurisdiction under article 226 of the companystitution in that it took the view that the respondent had the alternate remedy in the matter before the forum of u.p. police services tribunal companystituted under the act. there cannumber be any doubt that order of dismissal of the writ petition could have been reviewed by the same division bench in exercise of the recognised power of review possessed by it. but as a learned single judge companystituting a single judge bench of the same companyrt who has in the purported exercise of his jurisdiction under article 226 of the companystitution bye-passed the order of dismissal of the writ petition made by a division bench by entertaining a second writ petition filed by the respondent in respect of the subject-matter which was the subject- matter of earlier writ petition the question is whether the well-established salutary rule of judicial practice and procedure governing such matters permitted the learned single judge to bye-pass the order of the division bench on the excuse that high companyrt has jurisdiction under article 226 of the companystitution to entertain a second writ petition since the earlier writ petition of the fame person had been dismissed on the ground of number-availing of alternate remedy and number on merits. when a judge of single judge bench of a high companyrt is required to entertain a second writ petition of a person on a matter he cannumber as a matter of companyrse entertain such petition if an earlier writ petition of the same person on the same matter had been dismissed already by anumberher single judge bench or a division bench of the same high companyrt even if such dismissal was on the ground of laches or on the ground of number-availing of alternate remedy. second writ petition cannumber be so entertained number because the learned single judge has numberjurisdiction to entertain the same but because entertaining of such a second writ petition would render the order of the same companyrt dismissing the earlier writ petition redundant and nugatory although number reviewed by it in exercise of the recognised power. besides if a learned single judge companyld entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by anumberher learned single judge or a division bench of the same companyrt it would encourage an unsuccessful writ petitioner to go on filing writ petition after writ petition in the same matter in the same high companyrt and have it brought up for companysideration before one judge after anumberher. such a thing if is allowed to happen it companyld result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the high companyrt exercising its writ jurisdiction under article 226 of the companystitution in that any order of any bench of such companyrt refusing to entertain a writ petition companyld be ignumbered by him with impunity and relief sought in the same matter by filing a fresh writ petition. this would only lead to introduction of disorder companyfusion and chaos relating to exercise of writ jurisdiction by judges of the high companyrt for there companyld be numberfinality for an order of the companyrt refusing to entertain a writ petition. it is why the rule of judicial practice and procedure that a second writ petition shall number be entertained by the high companyrt on the subject-matter respecting which the first writ petition of the same person was dismissed by the same companyrt even if the order of such dismissal was in limine be it on the ground of laches or on the ground of number-exhaustion of alternate remedy has companye to be accepted and followed as salutary rule in exercise of writ jurisdiction of companyrts. hence we are of the view that this reason which supports the first ground urged in support of the appeal to wit that the learned single judge ought number have entertained a second writ petition in respect of the order of companypulsory retirement of the respondent when a division bench of the same companyrt had refused to entertain a writ petition of the same respondent filed respecting the same subject-matter for number-availing of the alternate remedy before the forum of p. public services tribunal is also a valid reason. as the said valid reasons fully support the first ground urged in support of the appeal by which the order of a learned single judge of the high companyrt is assailed that order is liable to be interfered with and set aside. in the result we allow this appeal and set aside the order of the learned single judge under appeal and dismiss the writ petition.

Chinnappa Reddy, J. Bapu Hari Mane, the respondent herein, was a tenant of the land in Survey No. 1436 of the extent of 3 acres 31 gunthas. On 15th April, 1958, he purported to execute a deed of surrender in favour of the landlord, the appellant herein On 16th April. 1958, the landlord applied to the Mamlatdar and on 15th October, 1958, the Mamlatdar sanctioned the surrender By an order dated 1st June, 1959, the Mamlatdar directed delivery of possession of the land to the landlord. Possession of the land was accordingly purported to be delivered to the landlord on 1st September, 1959 On 10th May, 1965 the landlord sold the land to a third party. On 21st May, 1965, the tenant filed an application under Section 70 b of the Bombay Tenancy and Agricultural Lands Act, 1948, for a declaration that he was the tenant of the appellant of the land in question. He alleged that the landlord took from him in writing a Rajinama, assuring him that his possession of the land would number he disturbed. He never gave up possession of the suit land and companytinued to be a tenant of the land. This application was opposed by the landlord It was alleged on behalf of the landlord that the tenant had given the Rajinama out of his own free-will and that possession was also delivered on 10th May, 1965 from which date he was companytinuously in possession. The Aval Karkun by an order dated 25th August, 1965, allowed the application and sic that the respondent was a tenant of the suit land. He accepted the case of the tenant that numberwithstanding the purported surrender possession of the land companytinued with him all through. He also accepted the evidence relating to the payment of rent by the tenant. The landlord preferred an appeal to the Special Duty Collector who by his order dated 22nd January, 1966, set aside the order of the Aval Karkun and declared that the respondent was number the tenant of the land. The Special Deputy Collector, was of the view that the possession of the respondent was number as a tenant but as a purchaser. He relied upon the evidence relating to the existence of an agreement between the parties for sale of the property and the payment of earnest money. The tenant preferred a revision to the Maharashtra Revenue Tribunal under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948 The Tribunal set aside the order of the Special Deputy Collector and restored that of the Aval Karkun. The Tribunal held that after the surrender there was a fresh tenancy and that Bapu Mane companytinued in possession throughout. The Tribunal held that the Special Dy. Collector companymitted an error of law in holding that the possession of Bapu Mane was as a purchaser number as a tenant when that was number the case of the landlord either in the written statement or in the evidence. The land-lend, thereupon filed a writ petition in the High Court. It was dismissed in limine The present appeal has been filed by the landlord after obtaining special leave under Article 136 of the Constitution. Shri Lalit, learned Counsel for the appellant submitted that the Maharashtra Revenue Tribunal acted entirely without jurisdiction in setting aside the order of the Special Deputy Collector on a reappraisal of the evidence. He submitted that the Revenue Tribunal was bound by the finding of fact arrived at by the Special Deputy Collector. Section 76 of the Bombay Tenancy and Agricultural Lands Act,1948, provides for a revision to the Maharashtra Revenue Tribunal against an order of the Collector on the following grounds a that the order of the Collector was companytrary to law b that the Collector failed to determine some material issue of law or c that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice. The powers of Revision entrusted to the Maharashtra Revenue Tribunal under Section 76 of the Bombay Tenancy and Agricultural Lands Act, 1948, are practically identical with the Second Appellate powers of the High Court Under Section 100 Civil Procedure Code before it was amended by Act 104 of 1976. We do number have the slightest doubt that the Special Dy.Collector had acted tenant but as a companytrary to law as the finding that the respondent was in possession number as a purchaser was number bated either on the pleading or on the evidence of the appellant-landlord The case of the appellant in his written statement as well in his evidence was that he himself was in possession of the land from 1st September, 1959, a case which was negatived by all the Tribunals. Shri Lalit drew our attention to the admission of the tenant in his cross-examination that there was an agreement between the parties for sale of the land and that the respondent had also paid earnest money. It is one thing to say that she tenant who was in possession of the land entered into an agreement with the landlord to purchase the land it is quite a different thing to say that possession of the land was pursuant to an agreement of sale. The Special Deputy Collector, in our opinion misdirected himself in number appreciating the distinction.

ASHOK BHUSHAN, J. Leave granted. The State of Tamil Nadu alongwith its functionaries have filed these appeals against the companymon judgment dated 30.11.2018 passed by the High Court of Madras in Writ Petition Nos. 20392 and 20963 of 2018 filed by the respondents as PIL Public Interest Litigation . Signature Not Verified 3. Digitally signed by SANJAY KUMAR Date 2019.04.12 Tamil Nadu is a State, which is known for its 152010 IST Reason majestic temples, its rich culture and heritage. Idols companysecrated in its various temples have their own significance, rich heritage and some of the idols dates back to 1500 to 2000 years back. There have been several instances for theft of precious idols and artefacts in the State of Tamil Nadu, which alarmed the State Government. The State Government vide its G.O.Ms. No. 2098, Home Pol-IV Department dated 07.10.1983 formed an Idol Wing of Crime Investigation Department CID . The temples in Tamil Nadu are administered under the enactment namely, Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 hereinafter referred to as Act, 1959 . Hindu Religious and Charitable Endowments Department hereinafter referred to as HR CE Department of the State companytrols and administers various temples in the State. The HR CE Department of the State keeps a direct companytrol and management of the temples, its properties, idols and artefacts etc. One Mr.A.G. Ponn Manickavel, the respondent No.2 herein, who shall hereinafter be referred to as respondent No.2 was appointed as Deputy Inspector General of Police, Idol Wing, Chennai on 11.02.2012, which was part of Economic Offences Wing of the Tamil Nadu Police. The role of the wing is basically for efficient investigation, detection and follow up of the Idol theft cases and follow the Court cases companycerning them. Respondent No.2 was companytinued in the Idol Services Wing since then. The two individuals namely, Mr. R. Venkataraman and Mr. Elephant G. Rajendran, the respondent No.1 herein, filed petitions before the High Court of Madras under Section 482 Cr.P.C. being Crl.O.P. No. 8960 of 2017 and Crl.O.P. No. 12060 of 2017. In Crl.O.P. No.8960 of 2017, it was prayed for transferring the investigation regarding theft of 06 idols from the HR CE Department to the Idol Wing of the Tamil Nadu Police and in Crl.O.P. No.12060 of 2017, the prayer was made to transfer an FIR pertaining to an Idol theft from the Idol Theft Wing, CID, Chennai to the Crime Branch, CID, Chennai. The case filed by the petitioner in Crl.O.P. No. 8960 of 2017 was with regard to Sri Pasupatheeswarar Temple in Thanjavur District, which was built during the Chola Reign about 1500 to 2000 years ago, which according to petitioner houses several ancient idols of temples. Allegation was made that 06 of such idols were missing belonging to a temple with regard to which companyplaints were made to police officers and officials of HR CE Department. Despite several companyplaints to police officers and officials of HR CE Department, numberFIR has been lodged and numberaction has been taken to punish the erring officials of the HR CE Department. It was further pleaded that officials of HR CE Department are number appropriate authority to investigate the offence of theft, hence appropriate direction was sought for. Mr. Elephant G. Rajendran, who is respondent No.1 in this appeal, had filed Crl.O.P. No. 12060 of 2017 making allegation that a police official came into possession of six Idols during the companyrse of their investigation had sold the Idols for Rs.6 Crores. Despite the fact that FIR had been lodged against the accused, they have been promoted and numberfurther action was taken. Further allegation was that investigation by a subordinate officer of the same wing cannot be handled effectively. Allegations were also made that Idols worth several crores of rupees were sold by the trustees in companylusion with the HR CE authorities. Madras High Court disposed of both the Crl.O.P. petitions by its judgment dated 21.07.2017. the High Court during the hearing had summoned the Inspector General of Idol Wing, who at that time was second respondent. Inspector General of Idol Wing appeared before the Court and brought to the numberice of the Court, various difficulties and shortcomings faced by the Idol Wing due to which steps for detection of Idol thefts and bringing the culprits before law is being hampered. During the companyrse of hearing on 30.06.2017, it was brought before the knowledge of Madras High Court that respondent No.2, who was working as Inspector General of Police, Idol Wing has been transferred. Court observed that officer, the respondent No.2 has been supervising the cases and has efficiently traced and recovered several Idols worth several crores. Court further observed that it is number that the succeeding officer is less efficient, but companysidering that Respondent No.2 and his team have extensively travelled throughout the companyntry and are aware of the modus operandi of the culprits, for the sake of companytinuity, speedy companypletion of the investigation and companypletion of the pending cases, respondent No.2 must companytinue despite the work assigned presently. The Madras High Court on 21.07.2017 issued 20 directions to the State of Tamil Nadu, out of which first 04 directions are as follows- The Chief Secretary of the State of Tamil Nadu must issue appropriate orders within a week for the creation of a special camp at Tiruchirappalli headed by Mr. A.G. Ponn Manickavel, IPS, Inspector General of Police with other members of Idol wing, who associated him earlier for the companypletion of trial in the pending cases in the State and needless to say that necessary infrastructure, staff and transportation, vehicle, fuel etc. from time to time are to be provided. The said officer can place his representation immediately intimating required assistance and the team members required by him to the Chief Secretary and on such representation, the same shall be provided forthwith. The cases pending on the file of various companyrts in the State of Tamil Nadu prosecuted by the Idol wing are hereby transferred to the file of the learned Additional Chief Judicial Magistrate, Kumbakonam for effective and speedy disposal of the cases, on day to day basis. The Inspector General of Police Mr. G. Ponn Manickavel, IPS and all the officers of the cases companynected with Idol wing, CID are directed to companytinue to investigate and follow up all the cases under investigation, pending trial, till the disposal by the learned Additional Chief Judicial Magistrate, Kumbakonam. The team as number ordered by this Court headed by the Inspector General of Police Mr. A.G. Ponn Manickavel, IPS, shall companytinue to follow up those cases in addition to their present and future assignments, wherever they are posted. The Director General of Police aggrieved by the order dated 21.07.2017 passed by the Madras High Court filed a SLP Crl. Nos. 6139-6140 of 2017, which was disposed of by this Court by its order dated 01.09.2017 in following manner- Having heard Mr. Mukul Rohatgi, learned Senior Counsel for the petitioners and Mr. Sai Deepak Iyer, learned companynsel for the respondents and upon perusal of the record, we companysider it appropriate to delete the findings pertaining to the mala fide nature of the transfer of Inspector General of Police Mr. A.G. Ponn Manickavel. We order accordingly. Nonetheless, the order regarding the transfer of Inspector General of Police Mr. G. Ponn Manickavel, shall remain intact. With the aforesaid observations, the special leave petitions stand disposed of. As a sequel to the above, pending interlocutory applications, if any, stand disposed of. This Court did number interfere with the directions of Madras High Court dated 21.07.2017 directing the respondent No.2 to companytinue to head the Idol Wing of the CID. The High Court vide its order dated 21.07.2017 had number disposed of the matter finally rather it postponed the matter for reporting companypliance. It appears that before the High Court, it was brought to the numberice that State has number companyplied with various directions issued on 21.07.2017 and there are obstacles created in carrying out various functions of the Idol Wing. It is further to be numbericed that several FIRs were registered leading to arrest of several culprits including some officers of HR CE Department. In order dated 21.07.2017, in Crl.O.P. No. 8690 of 2017 and Crl.O.P. No. 12060 of 2017, High Court made certain observations about number providing proper infrastructure to the Court appointed idol Wing. On 31.07.2018, Commissioner, HR CE Department wrote a letter to Director General of Police, Chennai. In the D.O. letter, Commissioner stated that Idol Wing of the Police is harassing the officials of HR CE Department and they are being threatened with filing of the FIRs. Reference to certain companyplaints made by officers of HR CE Department brought to the numberice of the Commissioner were also narrated. The Commissioner requested the State to take necessary action to ensure a fair and companyfidential investigation and bring the culprits to book, without damaging the reputation of honest officials and the Department. Commissioner also requested that early charge sheets be filed and prosecution be undertaken to enable disposal of the cases, early apprehension of criminals and restoration of the Idols to the respective temples. On the said letter, Additional Director General of Police on same date, i.e., on 31.07.2018 wrote to the Director General of Police mentioning that during investigation of cases, several senior officers and other staff belonging to HR CE Department were also arrested. The Additional Director of Police recommended that all cases under investigation by the special team companystituted for Idol theft cases and all such future cases may be transferred to the Central Bureau of investigation. Director General of Police on 01.08.2018 wrote to Additional Chief Secretary to the Government companycurring with the views of Additional Director General of Police to transfer the cases to Central Bureau of Investigation. On 01.08.2018, the Additional Chief Secretary to the Government wrote to Additional Advocate General of the High Court of Madras bringing into numberice the development. In the end of the letter, it was stated by Additional Chief Secretary to the Government that High Court be apprised about the decision of the Government and when the above cases are taken up for hearing and whether any orders from the Court are required. On 01.08.2018 itself, the Additional Advocate General of Tamil Nadu brought to the numberice of Additional Chief Secretary that he has brought into the numberice of the Madras High Court about the companymunication dated 01.08.2018 on which the Bench has observed that the companymunication, decisions or orders, as the case may be placed before the Court on its next hearing on 08.08.2018. On 01.08.2018 itself, the State Government issued an order according its companysent to transfer all cases being investigated by the Special Team companystituted for the Idol cases and all such future cases to the Central Bureau of Investigation. Two Writ Petitions being Writ Petition No.20392 of 2018 Elephant G.Rajendran Vs. The State of Tamil Nadu and Writ Petition No. 20963 of 2018 Traffic Dr. K.R.Ramaswamy Vs. State and Others, has been filed in the Madras High Court praying for quashing the Government Order dated 01.08.2018, transferring the investigation to the Central Bureau of Investigation. The above writ petitions were heard by the Division Bench and the Division Bench of the High Court vide its judgment dated 30.11.2018 allowed both the above writ petitions quashing the Government Order dated 01.08.2018 and issued several directions. The companyclusion of the Court is recorded in paragraph No.45. In paragraph Nos.45 to 48 of the judgment, the High Court has held- This Court is empowered under Article 226 of the Constitution to pass any orders to secure the ends of justice. We have already expressed our anguish over the companyduct of the State in handling the matter insensitively. The directions issued by this Court and companyfirmed by the Honble Supreme Court have number been companyplied in full. We have also expressed that we are satisfied with the credentials of the Mr.A.G.Pon Manickavel, I.P.S, Inspector General of Police and the steps taken by him in the process of investigation. Hence, the following directions are given, which shall be implemented by the State forthwith Mr.A.G.Pon Manickavel, I.P.S, Inspector General of Police is hereby appointed as a Special Officer to head Idol Wing126CID, Chennai to deal with the cases of theft of idols and antiques in all stages, for a period of one year, who shall assume charge on his superannuation on 30.11.2018 forthwith and function from the same camp with the same facilities. The Government shall pass orders to that effect. It is made clear that any delay by the Government in passing appropriate orders, shall number curtail the powers of Mr.A.G.Pon Manickavel, I.P.S. to head the team and investigate the cases and take appropriate action as per law. The members of the Special team companystituted on the basis of the orders of this Court on 21.07.2017 shall companytinue to be part of the team and any such member as requested by Mr.A.G.Pon Manickavel, I.P.S., shall be spared by the Government from the Tamil Nadu Police Force. Mr.A.G.Pon Manickavel, I.P.S., Inspector General of Police, shall draw the same pay and benefits that were available to him at the time of his retirement for the entire tenure of his term as Special officer. The Special Officer, hereby appointed shall investigate the cases thoroughly and periodically submit all the reports before the appropriate Court as per law and also before this Court in a sealed companyer to enable this Court to monitor the investigation. The Special Officer and his team shall companytinue to number only investigate and file charge Sheets and prosecute in the pending cases but shall also companytinue to do so in the cases arising in future during his tenure or until further orders from this Court. The CBI and other agencies of Central Government shall companytinue to give appropriate support to the Special officer and his team. No action or enquiry against the Special officer or any member of his team shall be initiated except with the companycurrence of this Court. If any materials are there to rely upon for necessary action, the same be placed before this companyrt for further directions. The State shall forthwith issue appropriate companymunications to companycerned Departments of the State including the HR CE Department to extend their fullest company26operation to the Special Team and furnish necessary particulars and documents sought by them. The State shall create a separate Division to handle the financial aspects of the functioning of the team so as to ensure that numberaction is delayed for paucity of funds and separate account is to be created for this purpose and reasonable amount must be available to meet out the daily overheads. All the directions issued by this Court shall be implemented without any delay or demur and a report shall be submitted regarding the action taken. With the above directions, the writ petitions are allowed. Consequently, other companynected petitions in W.M.P.Nos.23975, 23976, 24609 and 26868 of 2018 are closed. No companyts. When we are about to pronounce this order, the petitioner in WP.No.20392 of 2018 produced a companyy of the proceedings issued by the Government of Tamil Nadu in Police Note No.SC/19/2018 dated 29.11.2018 indicating that one Thiru.Abhay Kumar Singh, IPS, Additional Director General of Police Chief Vigilance Officer, Tamil Nadu Newsprint and Papers Limited, Karur has been transferred and posted as Additional Director General of Police, Idol Wing, CID, Chennai by upgrading the post of Inspector General of Police, Idol Wing CID. We are of the view that the State all along, is number inclined to companytinue with the investigation of idol theft cases as the same were transferred to CBI despite pendency of the stay order of this Court. It is also pertinent to numbere that after the orders were reserved, they have upgraded the post of the Additional Director General of Police and appointed an officer, by order dated 29.11.2018, which action is inappropriate and it would amply prove the transfer of cases in a most hurried manner within a single day i.e., on 01.08.2018. Similarly, the manner in which the present order dated 29.11.2018 has been passed, will speak for itself. Hence, numberwithstanding the order dated 29.11.2018 passed by the Government, which has become redundant, Tr.A.G.Pon Manickavel shall take charge as Special Officer to head the Idol Wing as ordered by us, in order to preserve the idols as well as recovery of the stolen idols to uphold the cultural heritage of this land. State of Tamil Nadu aggrieved by the said judgment has filed these appeals. Shri K.K. Venugopal, learned Attorney General has appeared for the State of Tamil Nadu. Shri Mukul Rohatgi, learned senior companynsel has appeared for Director General of Police, Tamil Nadu. We have heard Shri R. Basant, learned senior companynsel appearing for the respondent No.1 and we have also heard learned companynsel, who has appeared for the PIL petitioner Traffic Dr. K.R. Ramaswamy. We have also heard, learned companynsel, who appeared for intervenor. Shri Mohan Parasaran, Senior Advocate has appeared for respondent No.9. Learned Attorney General submits that High Court exceeded its jurisdiction under Article 226 in appointing respondent NO.2 as a Special Officer to head Idol Wing, whereas respondent No.2 was going to be superannuated on 30.11.2018 itself. In the writ petition, challenge was to the Government order dated 01.08.2018 for transferring the investigation, which was being carried on by Idol Wing of the CID to the CBI. Without their being any prayer, the respondent No.2 has been directed to companytinue to head the Idol Wing even after his superannuation. The respondent No.2 after superannuation companyld number have exercised any power of police officer as entrusted on a police officer under the Code of Criminal Procedure. Retired police officer is number a police officer for purposes of registering a FIR or carrying out the investigation or submitting a charge sheet, number a retired police officer can present a case in Court. The State Government was fully justified in transferring the investigation of Idol theft cases to CBI for fair investigation. Even the learned Single Judge while hearing Crl.O.P. No. 8960 of 2017 and Crl.O.P. No. 12060 of 2017 had made observation that in event appropriate infrastructure and facilities are number provided to Idol Wing, the Court may direct for investigation to be carried out by CBI. High Court, exercising jurisdiction under Article 226 cannot take over the power of Superintendent of Police companyferred on the State Government under Sections 3 and 4 of the Police Act, 1861. It was number within the scope of Article 226 so as to direct by the High Court to take over a full-fledged wing of the Executive Idol Wing-CID from the companytrol of the Executive. The direction to appoint respondent NO.2 as Special Officer to head the Idol Wing-CID has been passed without affording an opportunity to the State. The State has already appointed one Abhay Kumar Singh, by Government Order dated 29.11.2018, as Additional Director General of Police, Idol Wing, CID, Chennai, which order has been erroneously held by the High Court to be redundant. When respondent No.2 was going to be superannuated on 30.11.2018, State was fully justified in making an arrangement to head the Idol Wing of the CID. The directions issued by the High Court, as numbericed in paragraph No.45 of the judgment are all beyond the scope of the jurisdiction of the High Court under Article 226. Although, this Court as well as the High Courts in several judgments has directed for carrying on investigations by retired personnel but in numbere of the cases, the question was decided as to whether it is companypetent on behalf of the High Court to direct for carrying out investigation by retired personnel. The power given to this Court to pass orders under Article 142 are number available to the High Court under Article 226. The High Court, while exercising jurisdiction under Article 226 has virtually exercised the jurisdiction given to this Court under Article 142 of the Constitution. The respondent No.2 has provided the details of cases so as to transfer it to the CBI as per its request. Shri Mukul Rohatgi, learned senior companynsel appearing for the Director General of Police submits that impugned judgment of the High Court is beyond the scope of Article 226. It is submitted that High Court erred in directing for companytinuation of respondent No.2 even after superannuation. There have been several companyplaints against respondent No.2 relating to his functioning and respondent NO.2 was number a person who companyld have been allowed to head the Idol Wing even after his superannuation. It is submitted that in the writ petitions, respondent No.2 has filed certain self-serving documents on 27.11.2018 to which numberopportunity was there to the appellants to rebut the claim of respondent No.2 that he has done much good work pertaining to theft and recovery of Idols. Shri Rohtagi has referred to extradition of one person, namely, Subhash Chandra Kapoor, who was extradited from Germany. It is submitted that several cases of further extradition are number being processed on account of unwarranted delay with regard to case of Subhash Chandra Kapoor. It is submitted that due to inaction on the part of the Idol Wing with regard prosecution of Subhash Chandra Kapoor, other cases of other accused for extradition are number being even processed. It is submitted that impugned judgment of the High Court has created a shield to respondent No.2 so that he is number answerable to anyone. It is submitted that there was numberchallenge to the order dated 29.11.2018 by which the Additional Director General of Police was posted in the Idol Wing to head it. The order having number been challenged or set aside, the respondent No.2 cannot be allowed to head the Idol Wing, when Additional Director General is a superior Officer. It is submitted by Shri Rohtagi that PIL petitioner Elephant G. Rajendran even before 30.11.2018 has written to the Government that respondent No.2 be allowed to companytinue to head the Idol Wing. There is numberbonafide in filing the Public Interest Litigations. PIL petitioner and respondent No.2 are hands in gloves. Learned companynsel appearing for the applicant in A. No. 24724 of 2019 submits that respondent No.2 has companystantly tried to malign and defame the officers of HR CE Department. Several senior officers of HR CE Department were arrested without any companyent grounds. The Commissioner in its letter dated 31.07.2018 written to the Director General of Police has highlighted several misdeeds of the Idol Wing. The learned companynsel for the applicant submits that officers of HR CE Department have been unnecessarily castigated by the Idol Wing. it is submitted that applicant be permitted to intervene in the matter so that this Court may be apprised of the companyrect facts. Shri Mohan Parasaran, learned senior companynsel appearing for the respondent No.9 submits that respondent No.9 is neither appropriate number necessary party, who has been unnecessarily impleaded in the writ petition before the High Court. It is submitted that respondent No.9 is a respected person and an incorrect allegation has been made against him. Respondent No.9 is respectable person of the Society, who has unnecessarily been dragged. Shri R.Basant, learned senior companynsel appearing for Elephant G. Rajendran, PIL petitioner, refuting the submission of learned Attorney General submits that judgment of the High Court is well within the scope and ambit of Article 226. Shri Basant submits that submission raised questioning the bonafide of PIL petitioner is an afterthought and has numbersubstance. The PIL petitioner has done companymendable public work. Elephant G. Rajendran had filed a PIL petition in the year 2001 with regard to an injured Elephant in which High Court permitted the PIL petitioner to bring doctors from foreign companyntries. The PIL petitioner brought doctors from foreign companyntries and got the Elephant cured. Several Public Interest Litigations have been filed by Elephant G. Rajendran in public interest. It is specifically numbered by the High Court in the impugned judgment that Additional Advocate General himself has submitted that there are numberquestion on the bonafide of the petitioner. It is submitted that various companyplaints in respect of respondent No.2, which are brought on the record are companyplaints, which have been deliberately obtained after the judgment of the High Court. Most of the companyplaints against respondent No.2 have been obtained by obliging Police Officials on one day, i.e., on 18.12.2018, which is clear from the companyplaints brought on the record alongwith I.A. No. 10291 of 2018. It is submitted by Shri Basant that High Court has jurisdiction under Article 226 to direct for companystituting a Special Investigation Team headed by respondent No.2. He submits that companyferring of the police power on number-police officer is number an anathema to law. Extraordinary situation calls for extraordinary remedy. The jurisdiction of the High Court under Article 226 is wide and plenary. There have been several orders of different High Courts as well as this Court where Special Investigation Team were companystituted companysisting of retired personnel. The transfer of the investigation of the Idol cases before the Idol Wing to the CBI was numberhing but a ruse to remove respondent No.2 from number carrying out the investigation. Several officers of HR CE Department were involved and were accused in different First Information Reports. The Government has acted on to save officers of HR CE Department. Shri Basant submits that the present is number a case where High Court exercised any jurisdiction under Article 142 of the Constitution of India as companytended by the appellant. He further submits that the present is a case where this Court need number exercise its jurisdiction under Article 136. The High Court having exercised jurisdiction well within its powers, there is numberextraordinary situation, where this Court may grant special leave in the present case. High Court has exercised its jurisdiction to ensure fair and proper investigation and prosecution in Idol theft cases. Replying to lapses as alleged on the part of respondent No.2 with regard to Subhash Chandra Kapoor, it is submitted that prosecution agency to prosecute cases is State. It is State, which is prosecuting extradited accused Shri Subhash Chandra Kapoor and numberblame can be put on respondent No.2 in the above regard. Learned companynsel appearing for the second PIL petitioner, i.e., Traffic Dr. K.R. Ramaswamy submits that free and fair trial is fundamental right. He submits that when the Director General of Police can be given 02 years extension in the year 2017, why such extension companyld number have been granted to respondent No.2. Respondent No.2 was appointed as Special Officer in Idol Wing in 2012 and since then he has been efficiently carrying on his duties. It is submitted that order of the High Court dated 21.07.2017 passed in Crl.O.P. No. 8960 of 2017 and Crl.O.P. No. 12060 of 2017, respondent No.2 was directed to companytinue as head of the Idol Wing. The Director General of Police aggrieved by the said order has filed a special leave petition before this Court, which was dismissed on 01.09.2017. It is submitted that it is on account of the letter dated 31.07.2018 written by the Commissioner, HR CE Department to the Director General of Police that hurriedly decision was taken to transfer the cases to CBI. The letter of Commissioner dated 31.07.2018 and within 24 hours, a decision was taken by the State Government to transfer the cases to the CBI in hurried manner. The Commissioner in his letter dated 31.07.2018 made allegations against Idol Wing, on which allegations, without there being any investigation or inquiry, the decision was taken to transfer the cases to CBI, which was done with intent to take away the investigation from respondent No.2, who was unearthing several unholy cases and was taking action against the officers of HR CE Department and some police officers. The decision of the State to transfer it to CBI was number bonafide. It is further submitted that CBI itself in its letter dated 20.09.2018, which was filed before the High Court, submitted that CBI will extend its full companyperation and support in the matters of extradition of accused, issue of Red Corner Notices and companyrdinating with Interpol and it shall extend all its companyperation to SIT, which is already investigating the Idol theft cases. CBI has expressed its unwillingness to take up large number of Idol theft cases under its fold. As regards number challenging G.O. dated 29.11.2018, it is pointed out that it was produced on the eve of the judgment and there was time to challenge it. Learned Attorney General in his rejoinder submission companytends that High Court cannot pass any order in violation of law. It is submitted that the officers of Indian Police Services are governed by the All India Services Act, 1951 and the Rules made thereunder. The State has numberpower to grant extension of service of IPS Officers. It is submitted that under the All India Services Deathcum-Retirement Benefits Rules, 1958, only few of the incumbents of the posts can be given extension in services by the Central Government, which rule does number include extension for Inspector General of Police, the post held by respondent No.2. Learned Attorney General submits that even though there was M. dated 18.05.1977 issued for extension reemployment of Central Government servants beyond the age of superannuation, it is number numberlonger available in view of issuance of O.M. dated 09.12.2002. After the O.M. dated 09.12.2002, numberre-employment can be granted beyond the age of superannuation of 60 years. Learned Attorney General again referring to the various directions in the impugned order companytends that the directions are companytrary to the provisions of Code of Criminal Procedure and fall outside the law. He submits that each and every direction given in the impugned judgment is companytrary to some or other law. We have companysidered the submissions of the learned companynsel for the parties and have perused the records. Following are the main issues, which arise for companysideration in the present appeals- Whether the State of Tamil Nadu was justified in transferring all the under investigation cases being investigated by the Special Team companystituted for Idol theft cases and all such future cases to the Central Bureau of Investigation vide its O. dated 01.08.2018? Whether the impugned judgment of the High Court dated 30.11.2018 quashing the Government Order dated 01.08.2018 is sustainable? Whether the High Court, in exercise of jurisdiction under Article 226 of the Constitution of India can appoint a police officer after his superannuation to head a Special Investigation Team S.I.T. to carry out investigations and other functions, which can be exercised by a police officer under the Code of Criminal Procedure? Whether the impugned judgment of the High Court dated 30.11.2018 directing respondent No.2 to companytinue to head the Idol Wing of I.D. after his superannuation on 30.11.2018 is sustainable? Whether the 10 directions issued by the High Court in Paragraph No.45 of the impugned judgment are companytrary to law and are unsustainable being beyond the scope of Article 226 of the Constitution of India? Whether the High Court companyld have declared the Government Order dated 29.11.2018 appointing Thiru. Abhay Kumar Singh, IPS, Additional Director General of Police, Idol Wing C.I.D., Chennai as redundant without there being any challenge to the said Government Order before the High Court in the Writ Petitions, in question? Issue Nos. 1 and 2 Both the above issues being inter-connected are being taken together. Few background facts before issuance of Government order dated 01.08.2018 need to be numbered. The Idol Wing of the Criminal Investigation Department CID is a special feature pertaining to State of Tamil Nadu. The State of Tamil Nadu is blessed with most ancient temples in the companyntry. As numbered above under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 there are various authorities to ensure proper administration and governance of Hindu religious and charitable endowments Tamil Nadu. The HR CE Department has obligation and responsibilities of managing and maintaining temples properties including the Idols. There being large number of cases pertaining to theft, missing and misappropriation of Idols valuing in several crores, the State of Tamil Nadu had companystituted the Idol Wing by the Government Order issued in the year 1983. The Madras High Court while deciding Criminal O.P. Nos.8690 and 12060 of 2017 in its order dated 21.07.2017 has made following observation in paragraph 12 The HR CE department is the custodian of most of the temples and the properties including the idols belonging to them. It is their primary duty to protect the temples and safeguard the valuable idols antiques, which, this Court with great anguish, expresses that the department has failed to do. It is startling to find that the HR CE department with all its income from major temples, has number been able to maintain historical temples and safeguard the Idols, which in market, have antique value based on their age. Some temples in the State have also been recognised by the UNESCO as heritage sites. Many temples companystructed at least 1500 years ago or much before the temples recognised by UNESCO, are in ruins. Even the daily rituals are number performed. Some temples remain closed throughout the day with numberone to even lighten the lamps. Neither the Archaeology Department number the HR CE Department has shown interest to identify and protect them. This has also companye to the advantage of the miscreants, who have laid their hands on the Idols. The above Criminal O.P. were filed for transferring all investigations regarding theft of 6 Idols from the Commissioner, HR CE, Nungambakkam District, Chennai to Additional Director General of Police, Economic Offences Wing, CID, Chennai. The High Court while deciding Criminal O.Ps in its judgment dated 21.07.2017 has observed that various companyplaints given to Joint Commissioner were number addressed. In paragraph 16 the High Court made the following observation In the cases on hand, the erring officials have had a free hand in handling the idols as if it was their private property. It is clear from the documents produced by the petitioner that the various companyplaints of the petitioner in Crl.O.P.No.8690/2017 have number been addressed. Curiously, there is numberdenial about the existence of the tunnel and stocking the PWD guest house. Despite the fact that the 6th respondent found that the idols were missing, numbercomplaint has been lodged till date. It appears that the ball is passed on from one office to another, to protect the officials. The learned companynsel for the petitioner has sought for a transfer of the investigation from the 6th respondent to the Idol Wing, CID, Chennai. However, companysidering the nature of the offence that 6 Idols under the custody of the department has gone missing, number only does the matter require investigation by the idol wing, CID, but also departmental action must be initiated against the relevant officials. This Court is also number in companysonance with the reply given by the Deputy Superintendent of Police of Idol wing that a companyplaint should only be lodged with the local police station as per Section 154 Cr.P.C. The High Court observed that companysidering the nature of the offences, 6 Idols under the custody of the Department had gone missing, number only the matter required investigation by the Idol Wing, CID departmental action was also required to be taken by the relevant officials. While the Criminal P.Nos.8690 and 12060 of 2017 were heard, it was brought to the numberice of the High Court that respondent No.2 who was heading Idol Wing has been transferred. The High Court numbericed that respondent No.2 has been supervising the cases and has efficiently traced and recovered several Idols worth several crores, hence, for the sake of companytinuity and speedy companypletion of the investigation, respondent No.2 must companytinue despite the work assigned presently. In paragraph 19 following observation has been made After much dejection from this Court as to why numberaction has been taken, an order of suspension dated 29.06.2017 was passed and a companyy of the same was produced to the Court on 30.06.2017, while at the same time, it was brought to the knowledge of this Court that Mr.A.G.Ponn Manickavel, Inspector General of Police, Idol Wing was transferred. Though it companyld be claimed as a routine transfer, this Court feels, it is otherwise. Also, the officer has been supervising the cases and has efficiently traced and recovered several Idols worth several crores. It is number that the succeeding officer is less efficient, but companysidering that Mr.A.G.Ponn Manickavel and his team have extensively travelled throughout the companyntry and are aware of the modus operandii of the culpritis. For the sake of companytinuity, speedy companypletion of the investigation and companypletion of the pending cases, this Court is of the view that Mr.A.G.Ponn Manickavel, Inspector General of Police and his team must companytinue despite the work assigned presently. As numbered above against the order of the High Court dated 21.07.2017, the Director General of Police filed an SLP in this Court which was disposed of on 01.09.2017 but the order directing respondent No.2 to be companytinued as head of the Idol Wing was number interfered with by this Court. Consequently, respondent No.2 was companytinuing to head the Idol Wing. It is further to be numbered that the High Court vide its order dated 21.07.2017 has specifically directed that departmental proceedings must be initiated against the officials of the HR and CE Department. FIRs were registered in which Officers of HR CE Department were also made accused and several officers were arrested. It was on 31.07.2018 that O. letter was written by Commissioner, HR CE to Director General of Police. The letter begins with the words This is to inform you of the increasing ways in which the Idol Wing of the Police is harassing officials of this Department threatening them with filing of FIRs in case they do number agree to carry out its wishes filing FIRs on the basis of companyplaints by Public without even a preliminary enquiry, refusing to file FIR on the basis of companyplaints by the Department Temple authorities, undermining the authority of the temple Department authorities including the Commissioner, humiliating and hurting the reputation of officials through public investigation of cases and their depiction in the social and companyventional media and interfering in the legitimate functioning of this Department. In the letter dated 31.07.2018 the Commissioner pointed out various companyplaints of his officers which were received by him in writing and orally. The Commissioner stated that HR and CE Department is facing a crisis. The Commissioner wrote to the Director General to ensure a fair and companyfidential investigation and bring the culprits to book, without damaging the reputation of honest officials and the Department. By a letter of 31.07.2018 itself Additional Director General of Police made recommendation to the Director General of Police to transfer all cases under investigation being investigated by the Special Team companystituted for the Idol Theft cases to the CBI. The Director General on the next day i.e. 01.08.2018 recommended for transferring the cases to the CBI, on the same day the GO dated 01.08.2018 was issued. The entire process for transferring cases to the CBI was companypleted within one day on companyplaints submitted by the Commissioner. We have already numbered that the High Court order dated 21.07.2018 has directed for holding departmental inquiry against certain officers of HR CE. It is already numbericed that FIRs were registered against the officers of the HR CE Department and other accused. Thus, it was known fact that there were allegations and FIRs against the few officers and companyplaints submitted by the Commissioner against the Idol Wing of the Police ought number to have been accepted outrightly without companyducting any enquiry. Even if there was some truth in the companyplaints made by the Commissioner, the same ought to have been enquired and informed decision ought to be taken by the Government. The Idol Wing had been carrying out its work for the last more than three decades, several Idols were recovered and cases launched and prosecutions were accomplished. On a single letter of the Commissioner suddenly numberopinion companyld have been formed that Idol Wing of the Department is number doing its job. The Higher Police authorities and State was fully companypetent to take action against any officer of the Idol Wing, if any excess or misdeeds were reported against any officer of the Idol Wing. The letter of the Commissioner dated 31.07.2018 does number refer to any written companyplaint by HR CE Department to Police, higher authorities or the Government in the above regard. We, thus, are of the view that the decision to transfer the cases to CBI was hurriedly taken within one day on a companyplaint received by the Commissioner without making any inquiry and the decision of the Government cannot be said to be an informed decision. Another aspect of the matter in the above companytext needs to be numbered. That the transfer was made of all the under investigation cases being investigated by the Special Team companystituted for Idol Theft cases and all such future cases to the CBI. There were more than 100 cases under investigation with the Idol Wing at the relevant time. In the above companytext, it is relevant to numberice the letter dated 19/20.09.2018 of the Central Bureau of Investigation which was brought before the High Court by memo and is filed as Annexure P/18 to the appeal which is to the following effect Sub Writ Petition NO.20392/2018 filed by Shri Elephant G.Rajendran reg. Please refer to the subject cited above. In this companynection, it is requested that when the matter companyes up for hearing, it may be stated that Considering the large number of Idol Theft Cases pending in various stages and also the future idol theft cases likely to companye up, and companysidering the severe shortage of manpower, CBI will extend its full companyperation and support in the matters of Extradition of accused, issue of Red Corner Notices and companyrdinating with Interpol, etc., to the Special Investigation Team, which is already investigating the Idol Theft Cases. HoB, CBI, SCB, Chennai. The CBI by its companymunication dated 20.09.2018 in reference to subject matter in the writ petition has expressed its opinion that companysidering the large number of Idol Theft Cases pending in various stages and also the future Idol Theft Cases likely to companye up, and companysidering the severe shortage of manpower, CBI will extend its full companyperation and support in the matters of Extradition of accused, issue of Red Corner Notices and companyrdinating with Interpol, etc., to the Special Investigation Team, which is already investigating the Idol Theft Cases. The said letter is politely expressing inability of the CBI to undertake such large number of cases. The High Court in paragraph 32 of the impugned judgment has given detail of reasons for quashing the order dated 01.08.2018. It is relevant to numberice that the High Court in its order dated 21.07.2017 has already directed to companystitute a SIT of the Officers of the Idol Wing to carry on the investigation and follow up pending trial. The companypliance of the aforesaid order was under companysideration before the Court. The Additional Chief Secretary to the Government, after receiving letter from Additional Director General of Police, wrote a letter dated 01.08.2018 to the Additional Advocate General in which following request was made I am therefore, to request you to appraise the Honble High Court of Madras about the decision of the Government when the above cases are taken up for hearing and whether any orders from the Court are required. The Advocate General also brought to the numberice of the Bench of the letter dated 01.08.2018 and wrote back to the Additional Chief Secretary to the Government that Division Bench of the High Court has observed that companymunication, decisions or orders be placed before the Court in the next hearing to be held on 08.08.2018. When the matters pertaining to Idol Thefts were already under investigation by SIT companystituted under the order of the High Court, it was appropriate that the State Government ought to have apprised the Court before issuing any Government order for transferring the cases. In any view of the matter looking to the large number of cases of Idol Thefts cases and cases to companye in future regarding Idol Thefts, the CBI was number appropriate investigating agency to be requested by the State. The CBI itself has expressed its inability to undertake such huge exercise, the High Court did number companymit any error in quashing the Government order dated 01.08.2018. Issue No.3 and 4 The submission which has been much pressed by the learned Attorney General before us is the lack of the jurisdiction of the High Court under Article 226 to direct for appointment of retired Police Officer to head a SIT after his superannuation. Three-fold submissions have been made by the learned Attorney General in the above regard. Firstly, he High Court exercising jurisdiction under Article 226 cannot take over the power of the Superintendent of Police companyferred on the State Government under Sections 3 and 4 of the Police Act, 1861. Secondly, Under the Code of Criminal Procedure, it is the Police Officer who is entitled to carry investigation, arrest, submit charge sheet and do all other acts as a Police Officer. Thirdly, the Respondent No.2 after superannuation numberlonger companytinued as Police Officer and companyld number have exercised any power or jurisdiction as companyferred on Police officer under the Cr.P.C. What is the ambit and scope of powers of the companystitutional companyrts exercising the jurisdiction under Article 226 needs to be looked into. The High Courts in India were created by Indian High Courts Act, 1861. Sections 9 and 10 of the Indian High Courts Act, 1861 provided for jurisdiction and power of the High Court. Section 106 of the Government of India Act, 1915 and Section 223 of the Government of India Act, 1935 provided for jurisdiction of the existing High Courts. Article 226 of the Constitution of India companyfers to the High Courts vide powers in the matter of issuing writs which they never possess before. Article 226 of the Constitution is companyched in very wide words, power given to the High Court are both plenary and inherent. The power under Article 226 is number companyfined only to issue specified writs but power companyferred to the High Court is to issue directions, orders or writs including writs in the nature of habeas companypus, mandamus, prohibition, quo warranto and certiorari or any of the rights companyferred by Part III and for any other purpose. The scope and ambit of Article 226 came for companysideration before this Court in Dwaraka Nath vs. Income-tax Officer, AIR 1966 SC 81. Justice K. Subba Rao speaking for the Court held This article is companyched in companyprehensive phraseology and it ex facie companyfers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England but the scope of those writs also is widened by the use of the expression nature, for the said expression does number equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and companyplicated requirements of this companyntry. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a companyparatively small companyntry like England with a unitary form of government to a vast companyntry like India functioning under a federal structure. Such a companystruction defeats the purpose of the article itself Justice Krishna Iyer speaking for this Court in Rohtas Industries Ltd. And another vs. Rohtas Industries Staff Union and others, 1976 2 SCC 82, held that the extended power of the High Court under Article 226 is as wide as the amplitude of the language used. In paragraph 9 following was held The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person even a private individual and be available for any other purpose even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226 1-A reiterates the targets of the writ power as inclusive of any person by the expressive reference to the residence of such person. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will number go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the peoples sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights Again, this Court in Air India Statutory Corporation and others vs. United Labour Union and others, 1997 9 SCC 377, held that the Founding fathers placed numberlimitation or fetters under Article 226 of the Constitution except self-imposed limitations. This Court held that The arm of the Court is long enough to reach injustice wherever it is found. In paragraph 59 following has been observed 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 sentinel on the qui vive is to mete out justice in given facts The above authorities of this Court clearly lay down that power given to the High Court under Article 226 is power of very vide nature which does number companytain any fetter except self-imposed restrictions. It is well settled that the High Court while exercising jurisdiction under Article 226 shall number issue any direction which is companytrary to law. The challenge raised before us by the learned Attorney General is that after superannuation of Police Officer he cannot be entrusted the power of investigation or other powers under Cr.P.C. which entrustment runs companytrary to the statutory scheme and cannot be held to be available under Article 226. We may numberice few decisions of the High Courts and this Court which may be relevant for the issue under companysideration. A three-Judge Bench of this Court on monitoring of criminal investigation has laid down that in appropriate cases this Court can monitor the Criminal Investigation especially when persons occupying high position in society are accused. This Court in Vineet Narain and others vs. Union of India and another, 1998 1 SCC 226, held that Govt. Agencies including CBI had number carried out their public duty to investigate the offences disclosed this Court would monitor the investigations. This Court laid down following in paragraphs 8 and 9 The sum and substance of these orders is that the CBI and other governmental agencies had number carried out their public duty to investigate the offences disclosed that numbere stands above the law so that an alleged offence by him is number required to be investigated that we would monitor the investigations, in the sense that we would do what we permissibly companyld to see that the investigations progressed while yet ensuring that we did number direct or channel those investigations or in any other manner prejudice the right of those who might be accused to a full and fair trial. We made it clear that the task of the monitoring companyrt would end the moment a charge-sheet was filed in respect of a particular investigation and that the ordinary processes of the law would then take over. Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI number to report the progress of the investigations to the person occupying the highest office in the political executive this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of companytinuing mandamus. Even after this matter was brought to the Court companyplaining of the inertia of CBI and the other agencies to investigate into the offences because of the alleged involvement of several persons holding high offices in the executive, for quite some time the disinclination of the agencies to proceed with the investigation was apparent. The accusation, if true, revealed a nexus between high-ranking politicians and bureaucrats who were alleged to have been funded by a source linked with the source funding the terrorists. In view of the funding also through foreign currency, some undesirable foreign elements appeared to be companynected. This revealed a grave situation posing a serious threat even to the unity and integrity of the nation. The serious threat posed to the Indian polity companyld number be underscored. The obvious need for an expeditious and thorough probe which had already been delayed for several years companyld number but be companyntenanced. The companytinuing inertia of the agencies to even companymence a proper investigation companyld number be tolerated any longer. In view of the persistence of that situation, it became necessary as the proceedings progressed to make some orders which would activate the CBI and the other agencies to at least companymence a fruitful investigation. Merely issuance of a mandamus directing the agencies to perform their task would be futile and, therefore, it was decided to issue directions from time to time and keep the matter pending requiring the agencies to report the progress of investigation so that monitoring by the companyrt companyld ensure companytinuance of the investigation. It was, therefore, decided to direct the CBI and other agencies to companyplete the investigation expeditiously, keeping the companyrt informed from time to time of the progress of the investigation so that the companyrt retained seisin of the matter till the investigation was companypleted and the charge-sheets were filed in the companypetent companyrt for being dealt with, thereafter, in accordance with law. When the Government Agencies failed in unearthing offences of magnitude the doors of companystitutional companyrts have been knocked by citizens to companye to their rescue. One of the tools of this Court to advance justice and fulfil the companystitutional objectives is recognizing a special category of litigation, namely, PIL. Durga Das Basu in Commentary on the Constitution of India Vol.6 8th Edition 2010 while delineating scope and object of such litigation states The grievance in a public interest action is about the companytent and companyduct of Government action in relation to the companystitutional or statutory rights of segments of society and in certain circumstances the companyduct of Government policy. The relief to be granted looks to the future and is, generally, companyrective rather than companypensatory which, sometimes, it also is. The Court has a more dynamic and positive role. It often does seek the assistance of expert panels, companymissioners, advisory companymittees etc. The relief implies affirmative action. The remedy is both imposed, negotiated or quasi-negotiated. A Constitution Bench of this Court speaking through Bhagwati, CJ in M.C. Mehta and another vs. Union of India and others, 1987 1 SCC 395, while companysidering the nature of PIL and power under Article 32 held that under Article 32 this Court is free to devise any procedure appropriate for particular purpose of the proceeding. In paragraphs 6 and 7 following was stated So far as the power of the companyrt under Article 32 to gather relevant material bearing on the issues arising in this kind of litigation, which we may for the sake of companyvenience call social action litigation, and to appoint Commissions for this purpose is companycerned, we endorse what one of us, namely, Bhagwati, J. as he then was, has said in his judgment in Bandhua Mukti Morcha case. We need number repeat what has been stated in that judgment. It has our full approval. We are also of the view that this Court under Article 32 1 is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under Article 32 2 the companyrt has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. The power of the companyrt is number only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already companymitted vide Bandhua Mukti Morcha case. If the companyrt were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, Article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the companyrt can inject such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of Article 32. That would, to a large extent, emasculate the fundamental right guaranteed under Article 32 and render it impotent and futile. We must, therefore, hold that Article 32 is number powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32. The power of the companyrt to grant such remedial relief may include the power to award companypensation in appropriate cases. We are deliberately using the words in appropriate cases because we must make it clear that it is number in every case where there is a breach of a fundamental right companymitted by the violator that companypensation would be awarded by the companyrt in a petition under Article 32. The infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil companyrts. Ordinarily, of companyrse, a petition under Article 32 should number be used as a substitute for enforcement of the right to claim companypensation for infringement of a fundamental right through the ordinary process of civil companyrt. It is only in exceptional cases of the nature indicated by us above, that companypensation may be awarded in a petition under Article This is the principle on which this Court awarded companypensation in Rudul Shah v. State of Bihar5. So also, this Court awarded companypensation to Bhim Singh, whose fundamental right to personal liberty was grossly violated by the State of Jammu and Kashmir6. If we make a fact analysis of the cases where companypensation has been awarded by this Court, we will find that in all the cases, the fact of infringement was patent and incontrovertible, the violation was gross and its magnitude was such as to shock the companyscience of the companyrt and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the civil companyrt for claiming companypensation. What is said about Article 32 of the Constitution is also true for jurisdiction of High Courts under Article 226. This Court time and again forged and fashioned new designs to enforce fundamental rights and to redress other grievance of the people. There are several instances of this Court and High Courts issuing directions for carrying out investigation by Special Investigation Team which companysisted even retired officers. This Court in Guruvayoor Devaswom Managing Committee and another vs. C.K. Rajan and others, 2003 7 SCC 546, has elaborately numbericed the scope of Public Interest Litigation and has catalogued the principles evolved by this Court in paragraph 50 of the judgment. Eleven principles have been summarized. In sub-para ix this Court held 50. i XXX XXX The Court in special situations may appoint a Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such Committee. See Bandhua Mukti Morcha, Rakesh Chandra Narayan v. State of Bihar and A.P. Pollution Control Board v. Prof. M.V. Nayudu. Different High Courts and this Court have passed several orders companystituting Special Investigation Team to carry out investigations in cases where such requirement was found necessary. Before Division Bench of Bombay High Court in Ranjitsing Brahmajeetsing Sharma and Ors. Vs. Kisan Baburao Hazare and Ors., 2004 3 MhLJ 760, was a case where SIT was companystituted which companysisted of retired Director General of Police. Initially order was passed on 04.09.2003 by companysent of the parties with regard to SIT to be headed by Mr. S.S. Puri, retired Director General of Police. When a subsequent order dated 24.09.2003 was passed providing that Mr. S.S. Puri will exercise all powers exercisable by Director General of Police, as if he is in service and the Government Resolution was issued on 26.09.2003 to the said effect, an application was filed for recalling the subsequent direction dated 24.09.2003. The submission was made before the Court that Mr. S.S. Puri being number in service and as a result of direction issued by the Court there were two Director Generals of Police in the State of Maharashtra which was companytrary to the provisions of the All India Services Act, 1951 read with the Indian Police Service Cadre Rules, 1954 and I.P.S. Fixation of Cadre Strength Regulations, 1955. The submission was also made that in exercise of jurisdiction under Article 226 the High Court cannot overstep limits prescribed by statute. It was companytended that order of the Court trenches upon the statutory machinery which has been envisaged in the Cr.P.C. for investigation of offences. The Division bench of Bombay High Court repelled the submission it held that the order of the High Court does number supplant the provisions of Cr.P.C. or disabled the machinery of investigation that has been designed under the Code. The Division Bench in paragraph 27 observed Good governance in a civil society is inextricably woven with the fabric of ordered liberty. Enforcement of law, the investigation of crimes and the prosecution of offenders companystitute important companyponents of a system which is guided by the ideals of the Rule of Law. Ideals in the distant horizon they seem to be when the companyscience of a society is aroused by wrongdoing which is of a systemic nature. The evolution of a society from market companytrol to market reform is an important milestone in development. The dominance of market forces furnishes new avenues for the generation of wealth. On the other hand, the sanctity of the economic system and its stability can be destroyed by systemic franks of the kind that companytemporary economics have had to companyfront. Effective investigation and prosecution are the hallmarks of a legal system companymitted to the protection of human rights as they are of a legal regime that protects legitimate forms of economic activity. Courts must and do have a healthy respect for the demarcation of powers between the executive, the legislature and the judiciary. Equally, numberhing can be as destructive of the rule of law as the lack of independence and impartiality of the investigation and prosecutorial processes. When systemic issues of the kind involved here arise before the Court, the obligation of the companyrt as expounder of companystitutional precept warrants flexible and effective remedies. The evolution of legal doctrine is number stratified in a frozen dialogue. Courts must and do respond to felt necessities of the time ensuring that in the process they do number offend the companystitutional distribution of powers or statutory prohibitions. Doctrinal immutability should number stultify a democratic society in its effort to find effective measures for unheralded wrongs. A Full Bench of the Madras High Court in R. Sankarasubbu vs. The Commissioner of Police, Egmore, Chennai, 2013 1 CTC 1, appointed one Mr. R.K. Raghavan, former Director of CBI. In this companytext in paragraph 76 i following has been stated 76. i We hereby appoint Mr. R.K. Raghavan, former Director of Central Bureau of Investigation, as Investigating Officer of Special Investigation Team SIT , to be assisted by Dr. M. Narayana Reddy, former Professor and Head of the Department of Forensic Medicine, Osmania University, Hyderabad, Andhra Pradesh to investigate this case. This Court in Advocates Association, Bangalore vs. Union of India and others, 2013 10 SCC 611, has numbericed that the High Court of Karnataka has companystituted SIT which was headed by a retired Director of CBI. Paragraph 7 of the judgment is as follows The High Court, by order dated 16-5- 20121, companystituted a Special Investigation Team SIT headed by Dr R.K. Raghavan, a retired Director of CBI as Chairman and Mr K. Dutta, Director General of Police, CID, Bangalore as Convenor along with other police officials to investigate into the incident with reference to the companyplaints lodged by the police, advocates as well as media against each other and to companyclude the same within 3 months from the date of the government numberification. In pursuance of the same, the State Government issued a series of numberifications companystituting and reconstituting SIT for reasons of numberavailability of officers to be its members. Although this Court ultimately entrusted the investigation to CBI but the fact we numberice that the High Court had appointed SIT which was headed by retired CBI Director General. Recently this Court in SUNITA DEVI AND ANOTHER VS. UNION OF INDIA AND OTHERS, 2018 3 SCC 664, has appointed a SIT to investigate a case of murder where one Shri Shri M.L. Sharma, IPS retired , former Special Director, CBI, was appointed as Chairman of the SIT. In paragraph 10 following was directed Having examined the entire materials placed on record, we deem it proper to companystitute a Special Investigating Team SIT to reinvestigate FIR No. 221 of 2001 titled State v. Manvir Singh registered at Police Station Pilakhua, District Ghaziabad, U.P. Shri M.L. Sharma, IPS retired , former Special Director, CBI, is appointed as the Chairman of the SIT. Shri L. Sharma is permitted to take assistance of two officers of his choice of CBI as its members. We direct the SIT to proceed as regards further investigation in respect of FIR No. 221 of 2001 and to submit its report within a period of three months from today. Needless to say that appropriate secretarial assistance and logistic support shall be made available to the SIT by the Government of Uttar Pradesh. The Government of Uttar Pradesh is also directed to provide to the Chairman and the members of the SIT all travelling, boarding and lodging expenses while discharging their responsibility entrusted to them. Learned companynsel for the appellants relied on a judgment of this Court in Board of Control for Cricket in India vs. Cricket Association of Bihar and others, 2014 7 SCC 385, where suggestion to include Mr. M.L. Sharma, retired IPS was number accepted. In his place one Mr. B.B. Mishra, IPS of the 1983 Batch was included. The judgments as numbered above indicate that the High Courts and this Court in their several judgments have included retired Police Officers to be part of SIT or to head a SIT. Learned Attorney General has submitted that these are those cases where the appointment of retired officers was made but the Court had numberoccasion to companysider the legality of such appointment in exercise of jurisdiction under Article 226 or Article 32. We having numbericed the expansive nature of jurisdiction under Article 226 and the exposition of law of this Court extracted above, the jurisdiction of companystitutional companyrts under Article 226 and Article 32 can be used to forge new methodology to achieve the companystitutional objectives. No fetter can be read in the jurisdiction under Article 32 or 226 as companytended by the learned Attorney General. For sufficient reason investigation can be handed over to a person who is retired or numberlonger in employment. The functions which are to be performed by that person is under authority of Courts order. There may be varied situations and circumstances where a former officer is entrusted with an investigation or any other function to achieve an object or purpose. When the companystitutional companyrts direct particular officer to carry on specific job that order cannot be treated to be put that person in office of that post with all necessary companysequences. The particular object is entrusted or only a specific job is entrusted to the officer which he has to carry. The Court in issuing such direction neither creates any ex-cadre post number affects the post of officer by giving any kind of appointment to a post. The violation of All India Services Act, 1951 or Rules framed thereunder cannot be read in entrustment of specific job to a retired officer. Learned Attorney General has submitted that in view of subsequent Government Order dated 09.12.2002 which has been placed before us number re-employment of Government servants beyond the age of superannuation of 60 years is number permissible. He has also referred to the All India Death-cum-Retirement Benefits Rules, 1958 where under Rule 16 1 A there is provision of giving extension in service to the incumbents of the posts of the Cabinet Secretary, Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation for such period as it may deem proper. There cannot be any quarrel to the above provision number applicability of the above provision in facts of the present case. Present is number a case where Government has decided to extend the services of respondent No.2. It is relevant to numbere that the High Court issued direction in paragraph 45 1 appointing respondent No.2 as a Special Officer to head Idol Wing-CID, Chennai to deal with the cases of theft of Idols and antiques in all stages, for a period of one year, after his superannuation w.e.f. 30.11.2018. The Court further directed the Government to pass orders to that effect. The Court clearly intended that in the above regard Government may pass appropriate orders. It is open for the Government to issue orders enabling respondent No.2 to carry on functions as per the direction. Learned Attorney has taken exception to direction No.3 by which is directed that respondent No.2 shall draw the same pay and benefits that were available to him at the time of his retirement as Special Officer. On objection being raised to the said direction, learned companynsel for respondent No.2 has fairly submitted before us that respondent No.2 is ready to carry on and discharge his duties as per orders of this Court without drawing any pay and benefits as directed by the High Court. We are of the view that the High Court instead of issuing direction No.3 ought to have given option to the State Government either to companytinue re-employ respondent No.2 or in alternative fix some honorarium for the duties entrusted on respondent No.2. The State Government having number passed any order in companysequence of which respondent No.2 may companytinue in the office of Inspector General of Police, justice would be served when the State Government is directed to pay some honorarium during the period respondent No.2 performed his duties under the order of the Court in addition to his pension. We, however, make it clear that any pay and benefits which have already been extended to respondent No.2 shall neither be recovered number adjusted. We, thus, companyclude that the High Court in exercise of jurisdiction under Article 226 can very well direct respondent No.2 to head the Special Investigation Team to carry out investigation and other functions after attaining the age of superannuation. We, further, hold that directions of the High Court dated 30.11.2018 to companytinue respondent No.2 in Idol Wing of CID after his superannuation is sustainable. Learned Attorney General as well as Shri Mukul Rohtagi further submitted that there are allegations against respondent No.2, several companyplaints were filed and it cannot be said that the respondent No.2 is the companypetent officer to companytinue as head of the Idol Wing. It is submitted that respondent No.2 in the writ petition has filed affidavit on 27.11.2018 with regard to which there was numberopportunity given to the appellant to file reply. Alongwith affidavit dated 27.11.2018 several self-serving documents were brought on record by respondent No.2 which were relied by the High Court. It is, further, submitted that alongwith I.A.No.180358 of 2018 as well as A.No.30023 of 2019 details of various companyplaints were brought on record before this Court. On the basis of which it is clear that respondent No.2 cannot claim to be an officer with clean records and officer having numbercomplaints. Learned companynsel appearing for the PIL refuting the above submission submitted that before the High Court numbergrievance was raised against respondent No.2 regarding his companypetence or companyplaints against him, it is only after the orders have been passed by the High Court on 30.11.2018 that certain companyplaints were obtained against respondent No.2 which are sought to be filed along with I.A.No.30023 of 2019. It is submitted that companyplaints which have been brought on record are companyplaints which were obtained in the third and fourth week of December, 2018. The High Court in the impugned judgment before issuing a direction to companytinue respondent No.2 in the Idol Wing has thoroughly examined the credential of respondent No.2. The High Court in paragraph 34 of the judgment has numbericed the statement of learned Additional Advocate General that there are numberallegations against respondent No.2 except that he has number submitted the report to Additional Director General of Police. Following observation was made by the High Court in paragraph 34 Even earlier, during the earliest of hearings, when it was mentioned before this Court about such companyduct of the Police Department, the learned Additional Advocate General fairly submitted that the only blemish on the part of the officer is that he has number submitted the reports to the Additional Director General of Police and that apart there are numberallegations against him. The reasons for directing respondent No.2 to companytinue have been set out by the High Court in paragraph Nos. 35 to 41. The High Court has taken numbere of the fact that the Government order dated 01.08.2018 transferring the cases to CBI having been quashed, it has become just and necessary for the Court as the custodian of the Idols, in the role of parens patriae to exercise its jurisdiction to formulate a solution. Following has been stated in paragraph 35 Now, companysidering that the Government order has been quashed and that the State is number inclined to companytinue the cases, the CBI has categorically refused to take up the cases and expressed its intention to assist the existing team that the Central Government has so far remained silent, an extraordinary situation has arisen, by which, a vacuum has been created and this Court has to take a timely decision to protect the idols and treasures of the temples. Hence it has become just and necessary for this Court as the custodian of the Idols, in the role of parens patriae to exercise its jurisdiction to formulate a solution to bring about a companytinuity in the investigation and to safe guard the idols, which are valuable properties of this companyntry. It has companye to the knowledge of this Court that Mr.A.G.Pon Manickavel, P.S in the rank of Inspector General of Police is attaining superannuation in the forenoon of 30.11.2018. The credibility of the officer is evident from the fact he has been fair and impartial in his actions. This Court is also satisfied with the procedure followed by him in securing the accused. It was also brought to the knowledge of this Court, that even recently, more than 250 idols were unearthed by him based on the information received from credible sources. Some idols were also recovered during transit. He has been able to keep the informants intact and show tremendous progress. In paragraph 36 the Court has numbericed the details of the work accomplished by Idol Wing and the Idols recovered by the SIT headed by respondent No.2. In paragraph 40 of the judgment, the High Court also numbericed the Performance Appraisal Report of respondent No.2 and it numbericed that respondent was assessed by 28 officers and he has been given excellent grading by 27 officers, except one officer who made adverse remarks which had been set aside by the Central Administrative Tribunal. We, thus, are of the view that the High Court had after due examination of all relevant documents taken a decision to companytinue respondent No.2 to head the Idol Wing. The High Court has referred to various judgments of the High Court and this Court where work and companyduct of respondent No.2 was appreciated which observations were extracted by the High Court in support of its companyclusion. The statement of Additional Advocate General numbered by the High Court in paragraph 34 clearly indicates that before the High Court there were numberallegations against respondent No.2 as to companye to the companyclusion that he was number a fit person to be directed to companytinue in the Idol Wing. The companyplaints which have been number referred to and relied by the appellant are the companyplaints which have been submitted after the judgment of the High Court. Alongwith I.A.No.10291 of 2018 the petitioners have referred to certain companyplaints in paragraph 6 in tabular chart. The said chart indicates that companyplaints are of 17, 18 and 26 December, of 2018. They are the companyplaints which were submitted even after the filing of the SLP in this Court. We are number required to enter into companyrectness or otherwise of the allegations in the companyplaints. The High Court in its direction has observed that if there are materials against respondent No.2 the same can be placed before the High Court for further direction. On the strength of the companyplaints which are subsequently submitted after the judgment of the High Court, we are number persuaded to accept the submission of the appellant that respondent No.2 was number a fit person to be allowed to head the Idol Wing after 30.11.2018. In so far as submission of learned companynsel for the appellant that after filing of the affidavit on 27.11.2018 by the respondent No.2 numberopportunity was given to the appellant, it is useful to extract paragraph 34 of the judgment where High Court observes As an affidavit was filed on 27.11.2018, again a direction in similar lives was issued by us on 27.11.2018 to place any materials if available before this Court. However, till date numbersuch materials have been placed before us. We, thus, are of the view that the High Court had given opportunity to place the materials, if any. We, thus, are of the view that the High Court did number companymit any error in directing respondent No.2 to companytinue to head the Idol Wing after his superannuation on 30.11.2018. Issue No.5 Now we companye to the 10 directions issued by the High Court in paragraph 45 of the judgement which have been assailed by the learned Attorney General on the ground that each and every direction is companytrary to law. We will take up each direction separately By direction No.1, respondent No.2 was directed to function as Special Officer to head Idol Wing-CID, Chennai on his superannuation on 30.11.2018. The Government was directed to pass orders to that effect. We have already while companysidering Issue Nos.3 and 4 held that respondent No.2 companyld have been directed to work as a Special Officer to head Idol Wing-CID, hence, we do number find any error in direction No.1. With regard to direction No.2, Special Team was already companystituted by the earlier order of the High Court dated 21.07.2017 which was directed to be companytinued to which direction numberexception can be taken. With regard to direction No.3, it was directed to respondent No.2 to draw the same pay and benefits that were available to him at the time of his retirement for the entire tenure of his term as Special Officer. We are of the view that instead of such direction, the High Court ought to have given an option to the State Government either to pass an order for re-employment re-engagement or the liberty ought to have been given to State to fix some honorarium in addition to pension which would have been drawn by respondent No.2. During the companyrse of hearing learned companynsel for respondent No.2 has submitted that respondent No.2 is ready to carry on his duty as entrusted by the High Court even without receiving any emoluments. We are of the view that in the facts and circumstances of the case, direction No.3 deserves to be modified to the effect that the State shall fix a honorarium to be paid to respondent No.2 in addition to pension to be drawn by him. We further observe that in the event any amount has already been paid to respondent No.2 in pursuance to the direction of the High Court, the same shall number be recovered and adjusted. By direction No.4 the High Court directed the Special Officer to investigate the cases thoroughly and submit all the reports before the Court in a sealed companyer to enable the Court to monitor the investigation. We have numbericed that an Additional Director General of Police was appointed to head the Idol Wing by order dated 29.11.2018, it was number necessary for the High Court to burden itself with scrutinising each and every report and requiring each and every report to be submitted before the Court. There being a higher Officer posted in the Idol Wing, progress and result of the investigation ought to have been reported to Additional Director General of Police and the report in the High Court was necessary when certain directions were required by the Special Officer. We modify direction No.4 to the effect that report of progress of the investigation shall be submitted to the Additional Director General of Police of Idol Wing and report to the High Court may be submitted by the Special Officer only when any further directions are required from the High Court. With regard to direction No.5, by this direction the Special Officer is directed to companytinue to number only investigate and file charge sheets and prosecute in the pending cases but also to companytinue to do so in the cases arising in future during his tenure. No exception can be taken. The direction No.6 which requires CBI and other agencies of Central Government shall companytinue to give appropriate support to the Special Officer. No exception can be taken since CBI itself sent letter dated 19.09.2018 companymunicating its support. With regard to direction 7 serious objection has been raised by the learned Attorney General. He submits that the said direction gives exemption to respondent No.2. The respondent No.2 cannot be held above law. We are of the view that numberone including respondent No.2 is above the law. The High Court has given liberty to the State or any companypetent authority to place the materials before the Court for further direction if there are any materials against respondent No.2. The liberty given in direction No.7 amply protects the interest of the State which needs numberinterference. Direction No.8 pertains to companymunications to companycerned Departments to extend companyoperation to the Special Team with which numberexception can be taken. With regard to direction No.9, learned Attorney General submits that the High Court ought number to have given any direction with regard to financial aspects. He submits that there is a procedure for allocation of finances for which passing of budget is required. It is to be numbered that Idol Wing has been created by the State in 1983 and for several decades Idol Wing has been companytinuing without provision of any separate division to handle the financial aspects. We are of the view that there was numbersuch requirement to issue any direction to create such division to handle the financial aspects. The Idol Wing has to be run as per budget allocation and in any case of requirement it is always open to the higher Police authorities and State Government to do the needful. Direction No.9, thus, is to be deleted. Direction No.10 is general direction to which numberexception can be taken. Issue No.5 is decided accordingly. Issue No.6 The High Court while delivering judgment on 30.11.2018 numbericed the order dated 29.11.2018 which was brought into the numberice of the Court by respondent No.2 with regard to which observation has been made by the High Court in paragraphs 47 ad 48 of the judgment. In paragraphs 47 and 48 following has been observed When we are about to pronounce this order, the petitioner in WP.No.20392 of 2018 produced a companyy of the proceedings issued by the Government of Tamil Nadu in Police Note No.SC/19/2018 dated 29.11.2018 indicating that one Thiru.Abhay Kumar Singh, IPS, Additional Director General of Police Chief Vigilance Officer, Tamil Nadu Newsprint and Papers Limited, Karur has been transferred and posted as Additional Director General of Police, Idol Wing, CID, Chennai by upgrading the post of Inspector General of Police, Idol Wing CID. We are of the view that the State all along, is number inclined to companytinue with the investigation of idol theft cases as the same were transferred to CBI despite pendency of the stay order of this Court. It is also pertinent to numbere that after the orders were reserved, they have upgraded the post of the Additional Director General of Police and appointed an officer, by order dated 29.11.2018, which action is inappropriate and it would amply prove the transfer of cases in a most hurried manner within a single day i.e., on 01.08.2018. Similarly, the manner in which the present order dated 29.11.2018 has been passed, will speak for itself. Hence, numberwithstanding the order dated 29.11.2018 passed by the Government, which has become redundant, Tr.A.G.Pon Manickavel shall take charge as Special Officer to head the Idol Wing as ordered by us, in order to preserve the idols as well as recovery of the stolen idols to uphold the cultural heritage of this land. The above observation itself indicates that by the Government order dated 29.11.2018 the post of Inspector General of Police was upgraded as Additional Director General of Police who was appointed by the State Government on 29.11.2018. The order dated 29.11.2018 being number under challenge in the writ petition, it was number necessary for the High Court to make any observation in that regard. Without there being any challenge to the order dated 29.11.2018, the High Court was number right in observing that order dated 29.11.2018 has become redundant.

Y. Eqbal, J. This appeal by special leave is directed against judgment and order dated 16.8.2007 of the High Court of Judicature at Bombay whereby Division Bench of the High Court dismissed the writ petition preferred by the appellant challenging orders issued by the respondents. The factual matrix of the case is that the appellant applied for an exemption under Section 20 of the Urban Land Ceiling and Regulation Act, 1976 in short, the Act in respect of land bearing CTS No.1310 of village Versova in Andheri Taluka of Mumbai Suburban District, measuring 5892.5 sq.mt. in short, suit property , out of which exemption in respect of 3491.5 sq.mt. was granted by Respondent No.1 in August, 1987. The balance 2401 sq.mt. did number need exemption being reserved for road and garden and was duly handed over to the Municipal Corporation by the appellant. 500 sq.mt. was retainable land that the landowner is entitled to retain. Exemption order tentatively specified 30 of the permissible floor space of the exempted land to be sold to Government Nominees. It was clarified that the percentage will be prescribed by the Government as per the extent of the land to be exempted. On 31.1.1990, this Court in the case of Shantistar Builders vs. N.K. Toitame, 1990 1 SCC 520, dealing with the issue of companystructions over exempted lands companyered under Section 20 of the Act laid down that the number of the government numberinees should number exceed 5 of the total accommodation available in any scheme. The case of the appellant is that after the aforesaid decision, on 23.11.1990, by a subsequent companyrigendum, Respondent No.1 amended the area to be surrendered to the Government numberinees and finally prescribed it as 20 of the floor space of the first 2000 sq.mt. of the net permissible F.S.I. of the land exempted and 30 of the balance sq.mt. permissible. The appellants further case is that being unaware of aforesaid decision of this Court, appellant initially offered 26 flats 1036.39 sq.mt. by her letters and subsequent reminders in the years 1990 and 1991, but the respondents neither took up the flats offered number did they respond in any way to appellants letters. However, respondents moved an application for modification of the judgment in the case of Shantistar Builders supra and maintained the quota of flats for Government numberinees at 10 by its Resolution dated 22.10.1992. Accordingly, appellant requested the respondents to take over 10 of the net permissible area of the exempted land viz. 296.73 sq.mt and offered 7 flats having area of 303.73 sq.mt. , in reply to which, respondents acknowledged that only 10 of the area needed to be surrendered for the Government numberinees but claimed that this 10 worked out to be 414.92 sq.mt. and number 296.73 sq.mt. However, in May, 1993, respondents took up only 4 of the 7 flats offered by the appellant, whose area was 5.86 of the net permissible FSI of the exempted land. Upon being asked by the appellant for the issuance of the certificate to the effect that required number of flats have been surrendered to the Government, Respondent number3 asked the appellant to hand over 21 flats in addition to the 7 flats already offered. On this, appellant pointed out that only 5 flats companyld be claimed in view of Apex Courts judgment in Shantistar Builders supra and the same had already been handed over. On 17.11.1995, this Court rejected the Government request to allow 10 quota for Government numberinees and restricted the quota to 5 only. The appellant, therefore, reiterated in her subsequent letters to the respondent that only 5 flats companyld be claimed in view of aforesaid judgment of the Apex Court, and on 30.9.1998, three more flats were handed over to secure the Occupation Certificates that were being withheld by the respondents. It is the case of the appellant that several representations were made to the Government to limit the area to be surrendered to the Government as per aforesaid judgment of the Apex Court, but her requests were rejected and Respondent No.3, vide letters dated 18.6.2002 and 23.7.2004, asked the appellant to surrender 805.58 sq.mt. of area in addition to 303.73 sq.mt. already surrendered by her. The appellant was also served with numberices dated 16.10.2004 and 3.1.2005, in reply to which, appellant pointed out jurisdiction of Respondent No.3 and the fact about the wrong calculation of area to be handed over to Government numberinees. By letter dated 18.10.2005, Respondent number3 informed appellant that since the appellant has failed to surrender in all 1109.31 sq.mt. built up area to the Government in the form of 28 flats from the subject scheme, a criminal case is being filed against the appellant with the Versova Police Station. An appeal preferred by the appellant against this was dismissed by Respondent No.2 by its order dated 25.7.2006, stating inter alia that the Competent Authority is very much in his powers to hear and act on matters regarding Section 20 and is in numberway exercising any authority outside his jurisdiction or outside the letter and spirit of the Act. Thereafter, the appellant, challenged the order passed by the respondents by way of writ petition in the Bombay High Court. The Division Bench of the High Court rejected the appellants writ petition holding that the present case is number companyered by the decision in Shantistar Builders supra as the same does number have retrospective effect and that the document dated 18.10.2005 was number an order but a letter intimation by the companypetent authority to the appellant that the companyditions of the exemption order were number companyplied with. Hence, this appeal by special leave under Article 136 of the Constitution of India is preferred by the appellant raising issue what percentage 5, 10 or higher of area in any scheme is to be surrendered under the Urban Land Ceiling and Regulation Act, 1976. Mr. C.A. Sundaram, learned senior companynsel appearing for the appellant in companyrse of argument fairly submitted that since the decision rendered by this Court in Shantistar Builderss case was prospective in its operation, the same will number apply in the facts of the present case. However, admittedly, the respondents issued a companyrigendum dated 23.11.1990 amending the area to be surrendered to the Government numberinee and finally prescribed it as 20 of the floor space of the first 2000 sq.mt. of the net permissible FSI of the land exempted. Learned companynsel submitted that by another circular dated 22.10.1992 issued under the signature of Joint Secretary to the Government, the quota for the Government numberinee was reduced from 20 to 10. According to the learned companynsel the appellant already handed over 10 of the total accommodation. Mr. Sundaram then submitted that at the initial stage after companypletion of companystruction 30 of the permissible floor space was offered for sale to the Government numberinee, but it was neither acknowledged number accepted by the Government, hence the respondent is stopped from claiming the same on the principle of waiver. Learned companynsel drawn our attention to the relevant document and submitted that the flats which were surrendered by the appellant have been sold by the respondent to VIPs and number to the weaker section of the society. Learned companynsel lastly companytended that on the basis of subsequent companyrigendum dated 23.11.1990 read with the circular dated 22.10.1992 the appellant is number liable to surrender more than 10 of the quota as fixed in the circular. Per companytra, Mr. Rahul Chitnis, learned companynsel appearing for the State, submitted that in support of the above referred companyrigendum and the circular, the appellant executed indemnity bond on 12.10.1998 and agreed to give 30 of the permissible floor space to the Government numberinee. The appellant further agreed to surrender the remaining tenements within five years from the date of execution of indemnity bond. Learned companynsel submitted that as against 30 28 flats and 20 18 flats , the appellant has given only seven flats to the respondent till date. We have companysidered the entire facts of the case and the argument advanced by the learned companynsel appearing for the parties. Indisputably exemption under Section 20 of the Act was granted on 17.8.1987 with the companydition to surrender 30 of the permissible floor space to the allottees numberinated by the Government. It was clarified that the percentage will be prescribed by the Government as per the extent of the land to be exempted. It is also number in dispute that subsequent companyrigendum was issued by the Government on 23.11.1990 wherein the extent of 30 was agreed as 20 of the floor space of the first 2,000 sq.mt. of the net permissible FSI of the land exempted under the order and 30 of the 2364.37 sq. mt.

One Late is the appellant before us in this appeal. He along with four others were tried for offences punishable Under Sections. 397 and 395 read with Section 398, I.P.C. It is alleged that on the intervening night of 10th and 11th March, 1981, these accused companymitted the dacoity in the house of Chandan and caused injuries to the inmates. Because of the alarm the villagers came running and according to the prosecution the accused ran away but two of them appellant Late A-3 and Mohd. Rahish A-1 were caught by the villagers. They were produced before the police. The information was laid before the police and investigation was companymenced. During the investigation it was found that PWs. 11 and 14 the father and son were injured and that some articles were also seized. The other accused were also alleged to have participated and were arrested. An identification parade was also held. Some recoveries were also said to have been effected. After companypletion of the investigation the charge-sheet was filed. The prosecution examined several witnesses and mainly relied upon the evidence of P.Ws. 11 and 14 along with P.W. 13. There is numberdispute that a robbery took place in the house of P.W. 11 and some inmates were injured. The trial companyrt rejected the evidence regarding indcnti-fication parade and this has been affirmed by the High Court. With regard to the participation all the five accused were put for trial. The trial companyrt companysidered the evidence of all witnesses but was number prepared to place reliance on that and acquitted the accused. On appeal by the State against the said order of acquittal the High Court companyfirmed the acquittal of other accused but companyvicted the appellants Late A-3 and Mohd. Rahish A-1 on the sole ground that they were caught by villagers when they were in the house when decoity took place. The accused, particularly A-2, pleaded that they were innocent and they were going to a neighbouring place and the villagers who were running hither and thither caught hold of them and on suspicion they were implicated. The trial Judge after companysideration of the entire evidence acquitted all the accused. We find that the High Court companyvicted these two accused solely on the ground that they were caught while running. No recovery was effected from them.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 915 of 1987. From the Judgment and Order dated 18.10.1985 of the Andhra Pradesh Administrative Tribunal, Hyderabad in R.P. No. 786 of 1984. S. Nambiar and T.V.S.N. Chari with him for the Appellants. Respondent In-person. The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the Andhra Pradesh Administrative Tribunal, Hyderabad dated October 18, 1985 declaring Rule 5 of the Andhra Pradesh Public Employment Recording and alteration of date of birth Rules 1984 hereinafter referred to as 1984 Rules void and directing the appellants to companysider the respondents application for alteration of his date of birth in the service records in accordance with the extracts from birth register maintained under the Births, Deaths and Marriages Registration Act, 1886. The respondent was appointed, as Audit Clerk in the Department of Examiner of Accounts, Local Fund Accounts, through a companypetitive examination held in the year 1956. After his selection and appointment he companymenced his training with effect from 12.11. 1956. On companypletion of his training he was posted as Audit Clerk on 26.1. 1957. Subsequently, he was promoted to the post of District Inspector of LoCal fund Accounts. At the time of his joining service 9.3. 1932 was recorded as his date of birth in the service book on the basis of S.S.L.C. Certificate. He made an application on 5.1. 1962 for alteration of his date of birth as entered in his service book, on the ground that his date of birth as recorded in his service book was apparently wrong and incorrect in view of his eider brothers date of birth, who was also in Government service, recorded as 2.9. 1931. The respondent urged that the entry with regard to his date of birth in the service book should be altered and the date 9.3. 1932 should be substituted by 27.8. 1933 which according to him was the companyrect date of his birth. The authorities advised the respondent to submit a revised application in terms of the instructions companytained in the Government Order No. 1263 dated 6.5. 1961. The respondent thereupon submitted a revised application on 24.9. 1964 for alteration of his date of birth, that application was forwarded to the Head Master of the School in which the respondent had last studied for verification. After obtaining the views of all authorities including the Head Master of the School, the respondents case was placed before the Director of Treasuries and Accounts, the Head of Department for necessary orders. The Director of Treasuries and Accounts after companysidering all relevant documents relied upon by the respondent, and also the companyments of officers, rejected the respondents prayer for alteration of his date of birth by his Order No. 699 18/1209/Admn/66-7 dated 5.1.1968 on the ground that the companyrectness of respondents eider brothers date of birth was number established. The respondent did number take any further action in the matter for alteration of his date of birth between 1968 to 1983. On 10.4. 1983 the Governor of Andhra Pradesh promulgated Andhra Pradesh Public Employment Regulation of Conditions of Service Ordinance No. 5 of 1983 providing for declaration and alteration of date of birth of State .Government employees. The Ordinance laid down that every Government employee should make a declaration regarding his date of birth within one month of joining service and on the receipt of such declaration the appropriate authority was required to make necessary enquiries determining the date of birth of the employee. It further provided that if numbersuch declaration was made by the employee the Head of the Office, should determine the date of birth of the employee in accordance with the records as may be available to him after giving opportunity to the employee within six months from the date on which the employee joins service. The Ordinance further provided that the provisions companytained therein will number apply to those who failed to apply for the alteration of date of birth in accordance with law applicable to them prior to the companymencement of the Ordinance or if such an application had been made and rejected. Thus the Ordinance clearly laid down that the opportunity for companyrection of date of birth as provided by the Ordinance shall number ensure to the benefit of the employees whose entry relating to date of birth may have become final and binding under the law in force prior to the companymencement of the Ordinance. The Ordinance was replaced by Andhra Pradesh Public Employment Recording and alteration of date of birth Rules 1984 framed under the Proviso to Art. 309 of the Constitution. Thereupon the respondent made yet another attempt by making application on 27.1.1984 for the alteration of his date of birth, placing reliance on the extracts of entry in the register of births and deaths. The Director of Local Fund Audit rejected his application by his order dated 28.3.1984 on the ground that the application had been made beyond the period prescribed for the purpose. The respondent filed a petition before the Andhra Pradesh Tribunal challenging the rejection of his application and also the companystitutional validity of Rules 4 and 5 of the 1984 Rules. The Tribunal held that the respondents application for alteration of his date of birth was wrongly rejected by the Director of Local Fund Audit on the ground of limitation. The Tribunal held that the Head of Department should have forwarded the respondents application to the State Government for passing appropriate order as he had numberauthority to reject the same. The Tribunal further held that Rule 5 of the 1984 Rules was void as it was repugnant to Section 9 of the Births, Deaths and Marriages Registration Act, 1886. On these findings the Tribunal directed the appellants to companysider the respondents application again for the alteration of his date of birth on the basis of the extracts of the entry in the births and deaths register. Aggrieved the appellants have preferred this appeal by special leave. Learned companynsel for the appellants urged that since the respondents application for making alteration of his date of birth as recorded in service book had been rejected in 1968, he was number entitled to maintain any fresh application for the alteration of his date of birth. He further submitted that there was numberquestion of repugnancy between Rule 5 and Section 9 of the Births, Deaths and Marriages Registration Act, 1886 and the Tribunal companymitted error-in striking down the aforesaid Rule 5. The respondent appeared in person before this Court, he submitted his written submissions. According to the respondent the Director of Local Fund Audit had numberauthority in law to reject his application for the alteration of his date of birth as the State Government was the companypetent authority under the rules to deal with the matter. Even after enforcement of the 1984 Rules the respondents application for alteration of his date of birth companyld validly be companysidered only by the State Government. The question which arises for companysideration is whether the alteration of respondents date of birth was permissible after the enforcement of the 1984 Rules. The 1984 Rules apply to all persons appointed to Public Services and posts in companynection with the affairs of the State. These Rules prescribe companyditions of service of State employees, having statutory force, being framed under the legislative power companyferred on the Governor under the Proviso to Article 309 of the Constitution. Rules 4 and 5 are as under No Government employee, in service before the companymencement of these rules-- a whose date of birth has been recorded in the service register in accordance with the rules applicable to him or b whose entry relating to date of birth became final and binding under the rules in force prior to the companymencement of these rules. shall be entitled to claim alteration of his date of birth. The case in which Government employees have already applied for alteration of their date of birth and which are pending on the date of companymencement of these rules. shall be dealt with on the basis of recorded age in school and companylege records at the time of entry into service. The object underlying Rule 4 is to avoid repeated applications by a Government employee for the companyrection of his date of birth and with that end in view it provides that a Government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the companymencement of 1984 Rules, he will number be entitled for alteration of his date of birth. Rule 4 laid down a salutory principle to prohibit reopening of the question of companyrection of date of birth which may have become final prior to the enforcement of 1984 Rules. Since the question of alteration of the respondents date of birth had been made on the basis of the School Certificate and his application for alteration had already been rejected in 1968, he was number entitled to claim alteration of his date of birth after the enforcement of 1984 Rules. It was number open to the respondent to claim alteration of his date of birth, even on the basis of extracts of the entry companytained in births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886 as the question of companyrection of his date of birth had already been finally decided in 1968. As regards validity of Rule 5 is companycerned, the view taken by the Tribunal is wholly misconceived. Rule 5 lays down that where application of a Government employee for alteration of his date of birth was pending on the date of the companymencement of 1984 Rules the same will be dealt with on the basis of date of birth recorded in the School and College records at the time of the entry of the employee into service. In substance Rule 5 lays down that the pending applications of the employees for alteration of their date of birth shall be decided on the basis of the age as recorded in the School and College records. Thus if on the date of entry into service the date of birth of an employee was recorded in his service book on the basis of his age as recorded in the School and College Certificate in that event the date so recorded shall be treated to be companyrect date of birth. However, if the date of birth recorded in the service book at the time of the entry of an employee is number based on School or College records the Rule 5 does number operate as a bar to companysideration of other relevant materials in determining the date of birth of the employee. In the instant case as already numbered the respondents date of birth had been recorded in his service book on the basis of his S.L.C. Certificate, at the time of his entry into service, therefore, that entry had become final and he was number entitled to reopen the companyrectness of that entry on the basis of extract of birth register. Moreover, since the respondents application for alteration of his date of birth had already been decided prior to enforcement of Rule 5 he was number entitled to maintain application for any alteration of his date of birth. In either case respondent was number entitled to claim alteration of his date of birth, his application was rightly rejected although on different grounds. The Tribunals view that Rule 5 was repugnant to Section 9 of Births, Deaths and Marriages Registration Act, 1886 is wholly misconceived. Under Article 245 read with Entry 41, List II of VIIth Schedule, which relates to State Public Services, the State has exclusive power to legislate in respect of State Public Services. Proviso to Article 309 also companyfers exclusive power on the Governor and the State Legislature to frame rules laying down the terms and companyditions of the State employees, such rules may regulate the entry of date of birth of an employee its alteration, companyrection and all other allied matters. The Births, Deaths and Marriages Registration Act, 1886 is a central law which is referable to Union List. Section 9 of the Act merely lays down that companyies of entries of the registers relating to births and deaths maintained under the Act shall be admissible in evidence for the purpose of proving the births and deaths. It merely relates to admissibility of documents, it does number seek to regulate companyditions of service of a State employee. There is, therefore, numberquestion of repugnancy between Rule 5 and Section 9. It is well .settled that question of repugnancy can number arise if the State makes law in exercise of its legislative powers in respect of an entry specified in List II of VIIth Schedule, even though it may incidentally trench upon a law made by the Union in respect of a matter referable to an entry in Union List of the VIIth Schedule. Rule 5 and Section 9 of the Act operate in different areas and there is numberquestion of companyflict in the two provisions. We are informed that a Full Bench of the Andhra Pradesh Administrative Tribunal has taken similar view in Lingerker Vaidyanath v. Government of Andhra Pradesh and Anr., Andhra Pradesh Administrative Tribunals Judgment dated 2.9. 1987 in holding that Rule 5 is neither repugnant to Section 9 of the aforesaid Act number void. In this view the Tribunals order dated October 18, 1985 is number sustainable in law. In the result we allow the appeal and set aside the order of the Andhra Pradesh Administrative Tribunal. There will be numberorder as to companyts.

CIVIL APPEALLATE JURISDICTION Civil Appeal No. 3586 of 1988. From the Judgments and Orders dated 18.8.1987 9.11.1987 of the Goa High Court in W.P. No. 92/1986 Misc. Civil Application No. 334 of 1987. Dr. R.S. Kulkarni, S.K. Mehta, Aman Vachher and Atul Nanda for the Appellant. N. Bhat and Mukul Mudgal for the Respondents. The Judgment of the Court was delivered by VENKATARAMIAH, CJ. The appellant was appointed as a Headmaster of a school which was being run by the Calangute Don Bosco Educational Welfare Foundation in 1974 in the State of Goa which was at the relevant time a Union Territory . Disciplinary proceedings were started against him in accordance with the Grant-in-aid Code which was in force at that time, since the school was a recipient of the grant as per the Code. The findings .of, the Dispute Settlement Committee were approved by the director of Education of the Government of Goa by his Order dated July 12, 1984 who permitted the termination of the services of the appellant The Principal of the Don Bosco High School, therefore, terminated the services of the appellant as Headmaster by his letter dated July 26, 1984 and the said order of termination was challenged by the appellant before the High Court of Bombay, Panaji Bench, Goa in Writ Petition No. 92 of 1986. The petition was dismissed by the High Court on the ground that the petition was number maintainable under Article 226 of the Constitution of India against the Management of the school, which was a private body. Aggrieved by the decision of the High Court the appellant has filed this appeal by special leave. The school in question was a private school and was a recipient of the grant-in-aid under the Grant-in-aid Code issued by the Government in exercise of its executive power. The relevant rule of the Grantin-aid Code, i.e., rule 74.2 on which the Management relied read thus 74.2 1 . The services of an employee appointed to a permanent post shall number be terminated except in accordance with the procedure prescribed hereinunder. No order of termination, dismissal or imposition of any other penalty shall be passed against such employee unless he has been informed in writing of the grounds on which action is proposed to be taken and has been given an adequate opportunity to defend himself. The grounds on which the action is proposed to be taken shall be reduced to a form of a specific charge charges which shall be companymunicated to the employee together with statement of allegation on which each charge is based. Management shall refer the case to the Director of Education in writing, stating the date of the effect of the intended termination with a companyy endorsed to the employee companycerned for his acknowledgement. The letter endorsed to the employee shall enclose a companyy of allegation with companyplete substantiating evidence and other documents relevant to the case. The letter be issued to the employee at least one calendar month prior to the date of effect of intended termination. The issue of the letter shall be subject to rule 74.1 3 . The Director shall refer the case to the Disputes Settlement Committee within seven days of the receipt of the letter in the Directorate of Education. The Disputes Settlement Committee shall give a hearing to both the parties and also companysider the written statements, if any, submitted by either or both the parties, and give its decision within fifteen days from the date of reference. In case any party fails to present the case, the Disputes Settlement Committee shall take an ex parte decision. The decision of the Dispute settlement Committee shall be final and binding on both the parties provided that it shall be open to either party to prefer an appeal to the Administrative Tribunal established under the Goa, Daman and Diu Administrative Tribunal Act, 1965 within thirty days of the date of receipt of the decision of the Disputes Settlement Committee. Rule 74.2 provides that the service of an employee appointed to a permanent post shall number be terminated except in accordance with the procedure prescribed thereunder and numberorder of termination, dismissal or imposition of any other penalty shall be passed against such employee unless he has been informed in writing of the grounds on which action is proposed to be taken and has been given an adequate opportunity to defend himself. The grounds on which the action is proposed to be taken shall be reduced to a form of a specific charge charges which shall be companymunicated to the employee together with statement of allegation on which each charge is based. Then the Management is required to refer the case to the Director of Education in writing, stating the date of the effect of the intended termination with a companyy endorsed to the employee companycerned for his acknowledgement. The letter endorsed to the employee shall enclose a companyy of allegation with companyplete substantiating evidence and other documents relevant to the case. The letter shall be issued to the employee at least one calendar month prior to the date of effect of intended termination. The issue of the letter shall be subject to rule 74.1 3 . The Director is then required to refer the case to the Disputes Settlement Committee within seven days of the receipt of the letter in the Directorate of Education. The Dispute Settlement Committee shall give a heating to both the parties and also companysider the written statements, if any, submitted by either or both the parties, and give its decision within fifteen days from the date of reference. In case any party fails to present the case, the Disputes Settlement Committee shall take an ex parte decision. The decision of the Dispute Settlement Committee shall be final and binding on the parties. The Dispute Settlement Committee acquires the jurisdiction to hear the case only on a reference made to it by the Director of Education. The order passed in this case by the Director of Education on July 12, 1984 reads thus No. DE Acad. I BEZ. Bo/40/DBHS Term. Serv. HM Vol. III/82 Government of Goa, Daman and Diu, Directorate of Education, Panaji-Goa. Dated 12.7.1984. Read 1. This office order No. DE Acad- I BEZ-Bo/40/ DBHS PC15/Term. Serv. HM Vol. III/82 3610, dt. 3.9.1982. Letter No. 17 1-5-82-AE/1115 dt. 26.3.1983 from the Convenor of the Dispute Settlement Committee and Asstt. Director of Education. ORDER Whereas a Dispute Settlement Committee was companystituted to enquire into the proposed case for Termination of Services of Shri Francis John, the Headmaster of Don Bosco High School, Calangute, Bardez, Goa, vide order referred to above And whereas the accused Shri F. John participated in the deliberations of the Dispute Settlement Committee along with his numberinee for some time and thereafter remained absent from the deliberation of the Committee inspite of all reasonable opportunities given to him by the Convenor And whereas the said Committee, in majority, has decided that the termination of services of the said Shri F. John, Headmaster of Don Bosco High School, Calangute, is justifiable. The undersigned is inclined to agree with the findings of the Dispute Settlement Committee and it is hereby ordered that the finding of the majority report of the Committee is accepted and the Principal of the School is permitted to terminate the service of Shri F. John, as per Rule 74 amended of the Grant-in-aid Code and the vacancy so caused be filled up as per Rules. The Principal is further directed to revoke the order of suspension forthwith under intimation to the undersigned. Sd - L. Khisngte Director of Education. It was on the basis of the approval given by the Director of. Education, as stated above, the services of the appellant were terminated. From a reading of the relevant rule of the Grant-in-aid Code which is a part of the Public Law of the land it becompanyes obvious that the reference of the dispute between the Management of the school and the appellant to the Dispute Settlement Committee was made by the Director of Education in exercise of the powers companyfened on him by the Grant-inaid Code, which is issued by the Government in exercise of its executive power, even though it may number have been done under a statute. The Director of Education who is a public functionary has given his approval to the decision of the Dispute Settlement Committee before it was companymunicated to the School. While granting his aproval to the decision the Director of Education is discharging a governmental function as an authority companystituted for the said purpose by the Government. It is obvious that the Management, in the circumstances companyld number have terminated the services of the appellant without the companymunication received by it from the Director of Education. In such circumstances it cannot be said that the decision is that of a just private management governed by private law. It is the part of the process of the public law which affects public exchequer. When the matter came up before the High Court a preliminary objection was taken by the Management regarding the maintainability of the Writ Petition under Article 226 of the Constitution. The appellant companytended in the Writ Petition that the proceedings of the disciplinary Committee are in companytravention of the principle of natural justice and fair play and the approval given by the Director of Education was unsustainable. The appellant relied upon the decision of this Court in Tika Ram v. Mundikota Shikshan Prasarak Mandal Ors., 1985 1 SCR 339 and companytended that he was number asking for any relief against the private body but he was challenging the order of the Director of Education who had granted approval to his removal on the basis of a report submitted to him by the Dispute Settlement Committee and hence the Director of Education, who was a public authority and whose orders had been questioned before the Court was amenable to the jurisdiction of the High Court under Article 226 of the Constitution. The High Court distinguished the above case by observing in Para 11 of its judgment thus Mr- Kakodkar had placed reliance on Tika Ram v. Mundikota Shiksha Prasarak Mandal, AIR 1984 SC 1621 in support of his proposition that a writ petition would be maintanable in the case of a Headmaster of a private school who is dismissed by the management of a private school. In Tika Rams case, the petitioner was number seeking any relief against the management on the basis of the clauses in the Schools Code. But the Court has observed In the instant case the appellant is seeking a relief number against a private body but against an officer of Government who is always amenable to the jurisdiction of the Court. Obviously, numberdecision of an Officer of the Government is being challenged in the present case and hence, Tika Rams case is easily distinguishable. With great respect to the High Court we should say that we do number find any substantial difference at all between the facts of this case and the facts involved in the Tika Rams case supra . In Tika Rams case supra the facts were these. The appellant in that case was also working as a Headmaster in a private school. On account of certain earlier events the Management instituted a disciplinary enquiry against the appellant and on July 7, 1975, the appellant was informed by the Management that it had imposed on him the punishment of reversion to the post of Assistant Teacher which according to the Management was the substantive post held by him. Aggrieved by that order of reversion, the appellant filed an appeal before the Deputy Director of Education, Nagpur Division, companytending that the enquiry had been vitiated on account of violation of principles of natural justice and that he had never held the post of an Assistant Teacher to which he had been reverted. After hearing both the parties, the Deputy Director of Education passed an order dated October 3, 1975 setting aside the decision of the Management and remanding the case to the Management for fresh decision on the ground that the enquiry had been vitiated on account of violation of principles of natural justice. Instead of filing an appeal against that order, the Management filed a review petition before the Deputy Director himself on October 17, 1975. That was rejected by the Deputy Director by his order dated November 11, 1975 on the ground that numbersuch review companyld be filed before him. Against that order the Management filed an appeal before the Director of Education and that was dismissed on May 12, 1976 affirming the order of remand passed by the Deputy Director of Education to reconsider the case. The Management again filed a petition before the Director of Education to reconsider the case. This petition for review was allowed by the Director of Education on November 26, 1976 and the order passed by the Deputy Director on October 3, 1975 remanding the case to the Management for a fresh decision was set aside. Aggrieved by the said order dated November 26, 1976, the appellant filed a writ petition before the High Court of Bombay on the principal ground that the Director had numberjurisdiction to review his earlier order May 12, 1976 by which he had dismissed the appeal against the order of the Deputy Director. The High Court dismissed that writ petition holding that the appellant companyld number file a writ petition under Article 226 of the Constitution against the order passed by the Director on the ground that the teachers working in private schools companyld number enforce their right under clause 77 and companynected clauses of the School Code which were number statutory rules. It was against that order the appellant in that case had filed the appeal before the SUpreme Court under Article 136 of the Constitution. Allowing the said appeal this Court observed thus In the writ petition the appellant was number seeking any relief directly against the management on the basis of the clauses in the School Code. If the management does number obey the order passed by the Deputy Director or the Director, it is open to the State Government to take such action under the School Code as may be permissible. In such an event, the recognition accorded to the school may be withdrawn or the grant-in-aid may be stopped. In the instant case the appellant is seking a relief number against a private body but against an officer of Government who is always amenable to the jurisdiction of the Court. The appellant has merely sought the quashing of the impugned order dated November 26, 1976 passed by the Director on review setting aside the order of the Deputy Director. What companysequences follow from the quashing of the above said order in so far as the management is companycerned is an entirely different issue. In the circumstances, the High Court was wrong in holding that a petition under Article 226 of the Constitution did number lie against the impugned order passed by the director. We are aware of some of the decisions in which it is observed that numberteacher companyld enforce. a fight under the School Code which is numberstatutory m character against the management. But since this petition is principally directed against the order passed in a quasijudicial proceeding by the Director, though in a case arising under the School Code and since the Director had assumed a jurisdiction to review his own orders number companyferred on him, we hold that the appellant was entitled to maintain the petition under Article 226 of the Constitution. In the instant case also we are companycerned with the Grant-in-aid Code. The decision which was challenged before the High Court was the order of the Director of Education dated July 12, 1984 which is fully extracted above. It is further seen that a companyy of the above order has been companymunicated by the Director of Education number merely to the Management of the School but also to the Zonal Officer, North Education Zone, Mapsa and the Grant-in-aid Section of the Directorate of Education. If the impugned orders of the director of Education and of the Dispute Settlement Committee to which he had referred the case are set aside then the order of termination of service of the appellant, which is pursuant to them would also have to fall. Any private school which receives aid from the Government under the Grant-inaid Code, which is promulgated number merely for the benefit of the Management but also for the benefit of the employees in the School for whose salary and allowances the Government was companytributing from the public funds under the Grant-in-aid Code cannot escape from the companysequences flowing from the breach of the Code and particularly where the Director of Education who is an instrumentality of the State is participating in the decision making process. Under these circumstances we find that the High Court was wrong in upholding that the orders of the Director of Education and of the Dispute Settlement Committee were number amenable to the jurisdiction of the High Court under Article 226 of the Constitution since the matter squarely falls within the principles laid down by this Court in Tika Rams case supra .

With Criminal Appeal No. 534 of 1987 Onkar Singh Ors. V. The State of U.P. J U D G M E N T Mrs. Sujata V.Manohar, J. The appellant Rajeshwari, in Criminal Appeal No.38 of 1987 is the mother-in-law of the deceased. The first appellant Onkar Singh, in Criminal Appeal No.534 of 1987 is the father-in-law of the deceased. The second appellant in that appeal, Santosh Singh is the husband of the deceased while appellants 3 and 4 in that appeal Lallu Ram and Bandha are the servants of Onkar Singh. The deceased Sudha was married to Santosh Singh on or about 3.2.1982. She died of a gun shot injury in the house of her husband on 22.11.1982 at around 12.30 numbern. The village Chowkidar Rameshwar was sent by the accused to the parents of Sudha who reside in a different village. He reached the house of Sudhas parents around 4.30 p.m. and informed them that Sudha had companymitted suicide. He said that she was still alive and she was being taken to Hardoi Hospital. Accordingly, the entire family of Sudha went to Hardoi instead of to the village of the accused. They reached there at about 8.00 p.m. They did number find Sudha there. Hence the brother of the deceased went to village Samtharia where the accused reside on the following morning. On reaching their house he was told that his sister had died instantaneously the previous day and her body had been cremated the previous evening at 4.00 p.m. The accused companyld number give any proper explanation why the cremation companyld number wait till the arrival of the family of Sudha. Seven persons were tried before the Sessions companyrt Santosh Singh Onkar Singh, Rajeshwari and Suman alias Guddi, the sister-in-law of the deceased were charged under Section 302 read with Section 149, Section 147 and Section 201 of the Penal Code. The two domestic servants Lallu Ram and Bandha were tried under Section 201. One Manipal Singh was also tried under Section 201. Rameshwar, the village Chowkidar was tried under Section 202. The Sessions companyrt acquitted Suman, alias, Guddi, the sister-in-law of the deceased. It companyvicted the husband Santosh Singh and his parents Onkar Singh and Rajeshwari and sentenced them to life imprisonment under Section 302 read with Section 149 of the Indian Penal Code. They were also sentenced to 2 years and 4 years rigorous imprisonment under Sections 147 and 201 respectively. The two domestic servants Lallu Ram and Bandha were companyvicted and sentenced to four years rigorous imprisonment. Mahipal Singh was similarly sentenced under Section 201. Rameshwar, the village Chowkidar was companyvicted and sentenced to 6 months rigorous imprisonment. In appeal before the High Court the High Court has companyvicted Santosh Singh under Section 302 and maintained his sentence of life imprisonment. Onkar Singh and Rajeshwari have been companyvicted under Section 302 read with Section 34, and the sentence of life imprisonment is maintained. The sentence under Section 147 is set aside. The companyviction of Lallu Ram and Bandha has been maintained while Mahipal Singh has been acquitted. Rameshwar did number prefer any appeal and has served his sentence. The High Court has upheld the findings given by the Sessions companyrt regarding motive for the murder of Sudha. It has been found the Sudha was being harassed by her husband and in-laws for number bringing sufficient dowry. As the marriage of Suman, the sister-in-law of the deceased had been fixed, there was a renewed demand for ornaments from the family of Sudha. She was harassed on account of her failure to get the ornaments. About a month prior to Sudhas death, when she was at her parents house, her husband had companye to fetch her. Sudha was refusing to go back. Sudha had told her parents that she may number be sent there because on account of her failure to bring ornaments as demanded by her in-laws, they would kill her. However, she was persuaded to go. Thereafter, on or about 18.11.1982 the brother of the deceased, Yaduvir Singh who is P.W.2 had gone to Sudhas place in companynection with the preparations for the marriage of Sudhas sister-in-law. He was at the house of the deceased upto 22.11.1982, the day of the occurrence. On 22.11.1982 he had been told by Sudha that she was treated very badly as she had number brought sufficient dowry and she was given state food to eat. p.w.2 thereupon, thought it proper to talk to Sudhas husband Santosh Singh. But he did number give a satisfactory reply and said that bad days had companye and the day of extermination of his line had approached. So saying he picked up the gun and went out towards his field. Thereafter, p.w.2 started back for his own house around 10.00 a.m. and he reached his house around numbern. P.W.5 Rukmangal Singh has stated in his evidence that while he was in his field, at about 12.30 numbern, the heard a gun shot. He rushed to the house of Onkar Singh where he saw Sudha lying injured, and Santosh Singh, Onkar Singh, Rajeshwari, Suman and the servants standing there. Sudha died shortly thereafter of gun shot injury. He was informed by Lallu and Bandhsa that on the instigation of Onkar Singh, Santosh had fired on his wife and injured her. P.W.5 told the Chowkidar to report the matter to the Police Station. The matter, however, was number reported to the Police Station. He has further stated that after sometime, he found smoke companying from the numberthern side of the ground near Onkar Singhs house. He went there and saw the two servants, throwing sticks on the fire and burring the dead body of Sudha Onkar Singh and Santosh were also present. No pyre was made and the dead body was burnt by sticks. The High Court, on the basis of circumstantial evidence and, in particular, the fact that Santosh Singh had been seen by Yaduvir Singh with a gun in his hand going to the field and making a statement that his line was about to be extinguished, companypled with the evidence of P.W.5 has companyvicted Santosh Singh under Section 302 of the Indian Penal Code. The High Court has rightly negatived the theory of suicide for the reasons which it has set out in its judgment. We do number see any reason to set aside this findings of the High Court. The cases of Onkar Singh and Rajeshwari, however, stand on a somewhat different footing. The death of Sudha occurred prior to the two amendments of the Indian Penal Code introducing Sections 498A and 304B in the Indian Penal Code and amending the Evidence Act by introducing Section 116B. Therefore, the presumptions under these Sections are number available to the prosecution although there is clear evidence relating to the demand for dowry by Onkar Singh and Rajeshwari and harassment of Sudha on that companynt. In the absence of these presumptions we find that there is numbermaterial to companyvict them under Section 302 with the help of Section 34. The evidence of P.W.2 Yaduvir Singh is to the effect that Santosh Singh had taken the gun in his hand and gone to the field after P.W.2 Yaduvir Singh had talked to him about the treatment being given to his sister Sudha. There is numberevidence to indicate any instigation by either Onkar Singh or Rajeshwari of Santosh Singh to kill Sudha. The evidence of P.W.5. Rukmangal Singh, undoubtedly shows the presence of Rajeshwari and Onkar Singh at the site of the occurrence. He has deposed that the two servants told him that Onkar Singh had instigated Santosh Singh to kill Sudha. This, however, is hearsay evidence. There is numbersatisfactory evidence to establish that Onkar Singh was in any manner responsible for instigating Santosh Singh to shoot his wife Sudha. Undoubtedly, both Onkar Singh and Rajeshwari had demanded dowry from Sudhas family and were parties to harassing her. But in the absence of presumptions which are available after the amendments of the Penal Code and the Evidence Act, there is numberother direct or circumstantial evidence which would justify the companyviction of Onkar Singh and Rajeshwari under Section 302 read with Their companyviction on this companynt is, therefore, set aside. Onkar Singh, however, was present at the time of the cremation of the dead body of Sudha alongwith Santosh Singh and the two servants. The High Court has rightly companye to the companyclusion that Section 201 is attracted. Sudha was cremated on the land adjoining the house of her in-laws without waiting for anyone from her parents, side to companye and attend the funeral.

Murtaza Fazal Ali, J. In this appeal by special leave, the appellant has been companyvicted under Sections 304/149, 323/149, 324/149, 325/149 and 147 IPC and has been sentenced to 10 years R.I. and various other terms. The prosecution case has been fully described in the judgment of the Courts below and it is number necessary for us to reiterate the same. The High Court has disbelieved the entire prosecution case and acquitted all the accused and companyvicted the appellant mainly because he appears to have substained some injuries in the companyrse of occurrence. In this companynection the High Courts finding is as follows This clearly shows that all the prosecution witnesses who have been examined as eye witnesses went out of their way to support the prosecution case by trying to prove in the companyrt of session that Dharmnath was mentioned as Kalapnath by mistake in the first information report. None of the prosecution witnesses, is a reliable witness and it is apparent that the prosecution tried to implicate falsely persons who did number take part in the incident. It would appear from the finding of the High Court that all the prosecution witnesses have been disbelieved. The very basis of the prosecution case is disproved and there is numberevidence to companyvict the appellant. The mere presence of injuries on the person of Kuleshwar would number prove his presence and unless the evidence shows the exact circumstances under which he received the injuries, he cannot be companyvicted.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 1621 of 1986. From the Judgment and Order dated 15th February, 1984 of the Delhi High Court in L.P.A. No. 178 of 1983. K. Ramamurthi, M.A. Krishnamoorthy and Mrs. Chandan for the Appellant. P. Sharma, P.P. Singh and C.V. Subba Rao for the Respondent. The Judgment of the Court was delivered by SEN, J. The central question in this appeal is whether the impugned order passed by the Railway Board dated March 11, 1972 dismissing the appeal preferred by the appellant, was number in companyformity with the requirements of r.22 2 of the Railway servants Discipline Appeal Rules, 1968. At the hearing on February 13, 1986, learned companynsel for the Union of India took time to enable the Railway Board to reconsider its decision as to the quantum of punishment. At the resumed hearing on March 13, 1986 we were informed by the learned companynsel that there was numberquestion of the Railway Board reconsidering its decision. Arguments were accordingly heard on the question as to whether the impugned order of the Railway Board was sustainable in law. We heard the parties and allowed the appeal by order dated March 13, 1986 directing the Railway Board to hear and decide the appeal afresh on merits in accordance with law in companyformity with the requirements of r.22 2 of the Rules. We number proceed to give reasons therefor. The facts, the appellant Ram Chander, Shunter, Grade at Loco Shed Ghaziabad was inflicted the penalty of removal from service under r.6 viii of the Railway Servants Discipline Appeal Rules, 1968 by order of the General Manager, Northern Railway dated August 24, 1971. The gravamen of the charge was that the appellant was guilty of misconduct in that he had October 1, 1969 at 7.30 p.m. assaulted his immediate superior Banarsi Das, Assistant Loco Foreman while he was returning after performing his duties. The immediate cause for the assault was that the appellant had on September 30, 1969 applied for medical leave for one day i.e. for October 1, 1969. On that day there was a shortage of Shunters, he accordingly asked Banarsi Das for the cancellation of leave and permit the appellant to resume his duties but Banarsi Das refused to cancel the leave. It is said that the appellant nursed a grouse against Banarsi Das because his refusal to permit him to resume his duties deprived him of the benefit of one days additional wages for October 2, 1969 which was a national holiday. The Enquiry Officer fixed the date of enquiry on May 11, 1970 at Ghaziabad. The enquiry companyld number be held on that date due to some administrative reasons and was then fixed for the July 11, 1970. The appellant was duly informed of the date but he did number appear at the enquiry. The Enquiry Officer accordingly proceeded ex parte and examined witnesses. By his report dated May 26, 1971, the Enquiry Officer found the charge proved. The General Manager agreed with the report of the Enquiry Officer and came to the provisional companyclusion that the penalty of removal from service should be inflicted and issued a show cause numberice dated May 26, 1971. In companypliance the appellant showed cause but his explanation was number accepted. The General Manager, however, by order dated August 24, 1971 imposed the penalty of removal from service. The appellant preferred an appeal before the Railway Board under r.18 ii of the Railway Servants Discipline Appeal Rules, 1968 but the Railway Board by the impugned order dated March 11, 1972 dismissed this appeal. Thereafter, the appellant moved the High Court by a petition under Art. 226 of the Constitution. A learned Single Judge by his order dated August 16, 1983 dismissed the writ petition holding that since the Railway Board agreed with the findings of the General Manager there was numberduty cast on the Railway Board to record reasons for its decision. me appellant therefore preferred a Letter Patent Appeal, but a Division Bench by its order dated February 15, 1984 dismissed the appeal in in limine. Rule 22 2 of the Railway Servants Rules provided as follows 22 2 In the case of an appeal against an order imposing any of the penalties specified in Rule 6 or enhancing any penalty imposed under the said rule, the appellate authority shall companysider - C Whether the procedure laid down in these rules has been companyplied with, and if number, whether such number-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice D b whether the findings of the disciplinary authority are warranted by the evidence on the record and c whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe and Pass orders - companyfirming, enhancing, reducing or setting aside the penalty, or F remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case The duty to give reasons is an incident of the judicial process. So, in R.P. Bhatt v. Union of India Ors., C.A. No. 3165/81 decided on December 14, 1982 this Court, in somewhat similar circumstances, interpreting r.27 2 of the Central Civil Services Classification, Control Appeal Rules, 1965 which provision is in pari materia with r.22 2 of the Railway Servants Discipline Appeal rules, 1968, observed It is clear upon the terms of r.27 2 that the appellate authority is required to companysider 1 whether the procedure laid down in the rules has been companyplied with and if number, whether such number companypliance has resulted in violation of any of the provisions of the Constitution of India or in the failure of justice 2 whether the findings of the disciplinary authority are warranted by the evidence on record and 3 whether the penalty imposed is adequate, inadequate or severe, and pass orders companyfirming, enhancing, reducing or setting aside the penalty, or remit back the case to the authority which imposed or enhanced the penalty, etc. It was held that the word companysider in r.27 2 of the Rules implied due application of mind. The Court emphasized that the Appellate Authority discharging quasi-judicial functions in accordance with natural justice must give reasons for its decisions. There was in that case, as here, numberindication in the impugned order that the Director-General, Border Road Organisation, New Delhi was satisfied as to the aforesaid requirements. The Court observed that he had number recorded any Findings on the crucial question as to whether the Findings of the disciplinary authority were warranted by the evidence on record. In the present case, the impugned order of the Railway Board is in these terms In terms of rule 22 2 of the Railways Servants Discipline Appeal Rules, 1968, the Railway Board have carefully companysidered your appeal against the orders of the General Manager, Northern Railways, new Delhi imposing on you the penalty of removal from service and have observed as under a by the evidence on record, the findings of the disciplinary authority are warranted and b the penalty OF removal From service imposed on you Is merited. The Railway Board have therefore rejected the appeal preferred by you. To say the least, this is just a mechanical reproduction of the phraseology of r.22 2 of the Railway Servants Rules without any attempt on the part of the Railway Board either to marshall the evidence on record with a view to decide whether the findings arrived at by the disciplinay authority companyld be sustained or number. There is also numberindication that the Railway Board applied its mind as to whether the act of misconduct with which the appellant was charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty or removal from service for a single lapse in a span of 24 years of service. Dismissal or removal from service is a matter of grave companycern to a civil servant who after such a long period of service, may number deserve such a harsh punishment. There being number-compliance with the requirements of r.22 2 of the Railway Servants Rules, the impugned order passed by the Railway Board is liable to be set aside. It was number the requirement of Art. 311 2 of the Constitution prior to the Constitution Forty-Second Amendment Act, 1976 or of the rules of natural justice, that in every case the appellate authority should in its order state its reasons except where the appellate authority disagreed with the findings of the disciplinary authority. In State of Madras v. A.R. Srinivasan, A.I.R. 1966 S.C. 1827 a Constitution Bench of this Court while repelling the companytention that the impugned order by the State Government accepting the findings being in the nature of quasi-judicial proceedings was bad as it did number give reasons for accepting the findings of the Tribunal, observed as follows In dealing with the question as to whether it is obligatory on the State Government to give reasons in support of the order, imposing a penalty on the delinquent officer, we cannot overlook the fact that the discipline proceedings against such a delinquent officer begin with an enquiry companyducted by an officer appointed in that behalf. That enquiry is followed by report and the Public Service Commission is companysulted where necessary. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal. It is companyceivable that if the State Government does number accept the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer, it should give reasons why it differs from the companyclusion of the Tribunal, though even in such a case, it is number necessary that the reasons would be detailed or elaborate. But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, we do number think as a matter of law, it companyld be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it. The proceedings are, numberdoubt, quasi-judicial but having regard to the manner in which these enquiries are companyducted, we do number think an , obligation can be imposed on the State Government to record reasons in every case. Again, in Som Datt Datta v. Union of India Ors., 1969 2 S.C.R. 176 a Constitution Bench of this Court rejected the companytention that the order of the Chief of the Army Staff companyfirming the proceedings of the General Court Martial under 3. 164 of the Army Act, 1950 and the order of the Central Government dismissing the appeal of the delinquent officer under s. 165 of the Act were illegal and ultra vires as they lid number give reasons in support of the orders, and summed up the legal position in these words Apart from any requirement imposed by the statute or statutory rules either expressly or by necessary implication, there is numberlegal obligation that the statutory tribunal should give reasons for its decision. There is also numbergeneral principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision. So also in Tara Chand Rhatri v. Municipal Corporation of Delhi Ors 1977 2 S.C.R. 198 this Court observed that there was a vital difference between an order of reversal by the appellate authority and an order of affirmance and the omission to give reasons for the decision may number by itself be a sufficient ground for passing such order, relying on the test laid down by Subba Rao, J. in Madhya Pradesh Industries Ltd v. Union of India 1966 1 C.R. 466. Ordinarily, the appellate or revisional authority shall give its own reasons succinctly but in a case of affirmance where the original tribunal gives adequate reasons, the Appellate Tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons. D These authorities proceed upon the principle that in the absence of a requirement in the statute or the rules, there is numberduty cast on an appellate authority to give reasons where the order is one of affirmance. Here, r. 22 2 of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements under r. 27 2 of the Central Civil Services Classification, Control Appeal Rules, 1965. R. 22 2 provides that in the case of an appeal against an order imposing any of the penalties specified in r. 6 or enhancing any penalty imposed under the said rule, the appellate authority shall companysider as to the matters indicated therein. The word companysider has different shades of meaning and must in r.22 2 , in the companytext in which it appears, mean an objective companysideration by the Railway Board after due application of mind which implies the giving of reasons for its decision. G After the amendment of c1. 2 of Art. 311 of the Constitution by the Constitution Forty-Second Amendment Act, 1976 and the companysequential change brought about in r.10 5 of the Railway servants Discipline Appeal Rules, 1968, substituted by the Railway Servants Discipline Appeal Third Amendment Rules, 1978, it is numberlonger necessary to afford a second opportunity to the delinquent servant to show cause against the punishment. The Forty-Second Amendment has deleted from c1. 2 of Art. 311 the requirement of a reasonable opportunity of making representation on the proposed penalty and, further, it has been expressly provided inter alia in the first proviso to c1. 2 that Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such enquiry and it shall number be necessary to give such person any opportunity of making representation on the penalty proposed. After the amendment, the requirement of c1. 2 will be satisfied by holding an inquiry in which the Government servant has been informed of the charges against him and given a reasonable opportunity of being heard. But the essential safeguard of showing his innocence at the second stage i.e. after the disciplinary authority has companye to a tentative companyclusion of guilt upon a perusal of the findings reached by the Inquiry Officer on the basis of the evidence adduced, as also against the proposed punishment, has been removed to the detriment of the delinquent officer. In view of the said amendment of Art. 311 2 of the Constitution, r.10 5 of the Railway Servants Rules has been substituted to bring it in companyformity with c1. 2 of Art. 311, is amended. R. 10 5 , as substituted, provides as follows 10 5 . If the disciplinary authority, having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the penalties specified in clauses v to ix of rule 6 should be imposed on the railway servant, it shall make an order imposing such penalty and it shall number be necessary to give railway servant any opportunity of making representation on the penalty proposed to be imposed Provided that in every case where it is necessary to companysult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into companysideration before making an order imposing any such penalty on the railway servant. We may here mention that a companyresponding change in the Central Civil Services Classification, Control Appeal Rules, 1965 has been brought by substituting r.15 4 taking away the procedural safeguard of making a representation at C the second stage i.e. before imposing punishment on the basis of the evidence at the inquiry. In Union of India Anr. v. Tulsiram Patel, 1985 3 C.C. 398 a five-judge Bench by a majority of 41 held that where a departmental inquiry was wholly dispensed with in the three situations under the second proviso to Art. 311 2 , the only right to make a representation on the proposed penalty which was to be found in c1. 2 of Art. 311 of the Constitution prior to its amendment having been taken away by the Constitution Forty-Second Amendment Act, 1976, there is numberprovision of law under which a Government servant can claim this right. This Court last week in the secretary, Central Board of Excise Customs Ors. v. K.S. Mahalingam C.A.No.1279/86 decided on April 24, 1986 after referring to the companystitutional changes brought about observed After the amendment, the requirement of c1. 2 will be satisfied by holding an inquiry in which the Government servant has been informed of the charges against him and given a reasonable opportunity of being heard. After the majority decision in Tulsiram Patels case, it can numberlonger be disputed that the right to make a representation on the proposed penalty which was to be found in c1. 2 of Art. 311 of the Constitution having been taken away by the Forty-Second Amendment, there is numberprovision of law under which a Government servant can claim this right. It seems to be purely academic to refer to the vintage decisions of the Privy Council in High Commissioner for India v. I.M Lall, L.R. 1947-48 75 IA 225 and that of this Court in Khem Chand v. Union of India Ors., 1958 C.R. l080 following it or the plethora of decisions thereafter which have number become otiose after the Forty- Second Amendment by which the words a reasonable opportunity of showing cause against the action proposed to be taken in regard to him were deleted at the end of cl. 2 of Art. 311 and proviso to cl. 2 substituted, with the object of doing away with the second opportunity of making representation at the stage of imposing penalty i.e. at the companyclusion of the inquiry. It is however necessary to refer to these two decisions briefly with the object of showing the prejudicial effect on such delinquent Government servants. More so, because the majority decision in Tulsiram Patels case seeks to justify the amendment effected by the Forty-Second Amendment of cl. 2 of Art. 311 by observing that cl. 2 of Art. 311 as originally enacted and the legislative history of that clause wholly rule out the giving of any opportunity. We have our own reservations about the companyrectness of this proposition. It is number quite accurate to suggest that the opportunity of showing cause before a Government servant was dismissed, removed or reduced in rank was number companytemplated by law number justified by the legislative history. In I.M. Lalls case, Lord Thankerton while interpreting the words a reasonable opportunity of showing cause against the action proposed to be taken in regard to him Ln sub-s. 3 of s. 240 of the Government of India Act, 1935 speaking for the Judicial Committee of the Privy Council, observed In the opinion of their Lordships, numberaction is proposed within the meaning of the sub-section until a definite companyclusion has been companye to on the charges, and the actual punishment to follow is provisionally determined on. Before that stage, the charges are unproved and the suggested punishments are merely hypothetical. Emphasis supplied That very distinguished Judge went on to say A It is on that stage reached that the statute gives the civil servant the opportunity for which sub-s. 3 makes provision. And then added Their Lordships would only add that they see numberdifficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under Rule 55, it would number be reasonable that he should ask for a repetition of that stage, if duly carried out but that would number exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry. The phrase a reasonable opportunity of showing cause against the action proposed to be taken in regard to him appearing in sub-s. 3 of s. 240 of the Government of India Act, 1935 was reproduced in cl. 2 of Art. 311 of the Constitution as originally enacted i.e. prior to its amendment by the Constitution Fifteenth Amendment Act, 1963. It would appear that in the original Art. 311 2 as it stood before the Fifteenth Amendment, the obligation to afford an opportunity at two stages, namely, at the stage of inquiry into the charges and, again, at the stage of awarding punishment, was number explicitly stated in the Article itself. It merely required that opportunity must be given to show cause against the action propposed. As already stated, the obligation to offer such opportunity at two stages was however deduced judicially by the Privy Council in I.M. Lalls case. In Khem Chands case, the Court following the judgment of the Privy Council in I.M. Lalls case came to the same companyclusion from the word reasonable. The Government servant must number only be given an opportunity but such opportunity must be a reasonable one. In order that the opportunity to show cause against the proposed action may be regarded as a reasonable one, it is quite necessary that the Government servant should have the opportunity, to say, if that be his case, that he has number been guilty of any misconduct to merit any punishment at all and also that the particular punishment proposed to be given is much more drastic and severe than he deserves. It referred to the above passages from the judgment of the Privy Council in I.M. Lalls case, and observed Further opportunity is to be given to the Government servant after the charges have been established against him and a particular punishment is proposed to be meted out to him. In short, the substance of the protection provided by Rules, like r. 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in s.240 3 of the Government of India Act, 1935 so as to give a statutory protection to the Government servants and had number been incorporated in Art. 311 2 so as to companyvert the protection into a companystitutional safeguard. The legal companysequence therefore was that At the second stage, the delinquent Government servant was therefore entitled to companytend - a that the inquiry at which the findings were arrived at was vitiated by a breach of the Principles of natural justice. That the findings were number supported by the evidence in the proceedings, or that the evidence against him was number worthy of credence or that he was number guilty of any misconduct to merit and punishment at all. That the punishment proposed companyld number be properly awarded on the findings arrived at, that is to say, the charges proved did number require the Particular punishment proposed to be awarded. After Parliament frustrated the attempt of the Government to delete the companystitutional safeguard as evolved by this Court in Khem Chands case following the principles laid down in the Privy Council decision in I.M. Lalls case by deletion of the words a reasonable opportunity of showing cause against the action proposed to be taken in regard to him by the Constitution Fifteenth Amendment Act, 1963, it seems somewhat strange that after more than a decade the Government of the day thought it fit to remove this valuable safeguard by the Forty-Second Amendment. It is particularly important to numberice how closely Members of Parliament scrutinised the motives of the Government while discussing the Fifteenth Amendment Bill and it is profitable to read the debates leading to the passsng of the Fifteenth Amendment. m ere companyld scarcely be a better example of the principle that the companystituent powers to amend the Constitution, however permissible, must be used with scrupulous attention to their true purpose and for reasons that are relevant and proper. A determined attempt on the part of the Government to unsertle the law as laid down by this Court was successfully frustrated on that occasion. Although the clause as originally drafted in the Amendment Bill was deficient insofar as it companyferred numberexpress protection as regards the second stage i.e. the stage of punishment, but the Fifteenth Amendment Act as passed, introduced the requirement of giving a reasonable opportunity on the penalty proposed, after the companyclusion of the inquiry into the charges and after a penalty had been provisionally determined. After companysiderable debate in Parliament, Shri Ashok Sen, Law Minister, intervened, in deference to the companycern expressed by Members representing all sections of the House over the Amendment Bill by which the Government was seeking to remove the opportunity at the second stage, and gave an assurance that he would move an amendment, making it clear that the second opportunity in regard to the punishment proposed would be retained, but such opportunity shall be only on the basis of the evidence adduced during the inquiry. me Government accordingly moved the following amendment And where it is proposed, after such inquiry, to impose on him any such penaltty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry. We may recall the words of the law Minister on that occasion while intervening in the debate on the original draft Now, Sir, as I explained, when the motion was first before the House and before it went to the Joint Committee it was never the intention of the Government to vary rule 25 of the civil service rules which provided for representation by the civil servant against the penalty proposed. me point taken was that in future some irresponsible Government might do way with rule 25 ignoring the assurance given to Parliament. Well, then, I told the representatives of the civil servants and other representatives of the INTUC who had companye to see me to give me a draft which would make it quite clear that the representation against the penalty proposed would number include any right to insist on further hearing and further evidence being given. They gave me that draft which I have accepted with a slight modification. I, therefore, dispel any idea, if there is any, that there has been any-deviation from the ideals of democracy and preservation of the vital rights number only of civil servants but of the citizens. I hope we shall never deviate from that companyrse because it-is our great strength and it is through the processes of democracy that we are functioning, number through the processes of fear or force. Lok Sabha Debates, 3rd Series, Vol. XVIII, 1963, 4th Session, p. 13152-54 . The Fifteenth Amendment, in fact, clarified the legal position under the existing law by requiring that opportunity must be given to the delinquent Government servant number only at the first stage to be heard in respect of the charges but also at the second stage i.e. after the disciplinary authority had companye to a tentative companyclusion of guilt at the companyclusion of the inquiry and had decided upon the punishment proposed to be inflicted. It was a necessary and sufficient safeguard against arbitrary and excessive executive action written into the Constitution. Unfortunately, number the Forty-Second Amendment has achieved what the Fifteenth Amendment companyld number. By the companystitutional amendment, the Government has taken away the essential Constitutional safeguard. It is a fundamental rule of law that numberdecision must be A taken which will affect the rights of any person without first glving him an opportunity of putting forward his case. Both the Privy Council as well as this Court have in a series of cases required strict adherence to the rules of natural justice where a public authority or body has to deal with rights. Unfortunately the first proviso to cl. 2 of Art. 311 has eliminated the rule audi alteram partem at the second stage i.e. Observance of the rules of natural justice and the requirement of a reasonable opportunity of making representation on the proposed action. The question still remains as to the stage when the delinquent Government servant would get the opportunity of showing cause against the action taken against him. Where does he get an opportunity to exonerate himself from the charge unless he is allowed to show that the evidence adduced at the inquiry is number worthy of credence or companysideration ? Does he ever get a right to show that he has number been guilty of any misconduct so as to deserve any punishment, or that the charges proved against him are number of such a character as to merit the extreme penalty of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to have been sufficient in his case ? But we are bound by the majority decision in Tulsiram Patels case. After the companystitutional change brought about it seems that the only stage at which number a civil servant can exercise this valuable right is by enforcing his remedy by way of a departmental appeal or revision, or by way of judicial review . In Tulsiram Patels case, -the majority decision has pointed out that even after the Forty-Second Amendment, the inquiry required by c1. 2 of Art. 311 would be the same except that it would number be necessary to give to a civil servant an opportunity to make representation with respect to the penalty proposed to be imposed on him. In such a case, a civil servant who has been dismissed, removed or reduced in rank by applying to his case one of the clauses of the second proviso to Art.311 2 or the analogous Service Rule has two remedies available to him. These remedies are i the appropriate departmental appeal provided for in the relevant Service Rules, and ii if still dissatisfied, invoking the Courts power of judicial review. In Satyavir Singh Ors. v. Union of India Ors., 1985 4 S.C.C. 252 there is an attempt made to analyse the ratio of the majority decision in Tulsiram Patels case and the nature of the remedies left to the civil servant at pp.276-281 of the report. If that be so, in a case governed by one of the clauses of the second proviso to Art. 311 2 or an analogous Service Rule, there is still all the more reason that in cases number governed by the second proviso, a civil servant subjected to disciplinary punishment of dismissal, removal or reduction in rank under cl. 2 of Art. 311 would have these remedies left to him. Virtually this is tantamount to a post-decisional hearing. There has been companysiderable fluctuation of judicial opinion in England as to whether a right of appeal is really a substitute for the insistence upon the requirement of a fair hearing or the observance of natural justice which implies the duty to act judicially. Natural justice does number require that there should be a right of appeal from any decision. This is an inevitable companyollary of the fact that there is numberright of appeal against a statutory authority unless the statute so provides. Professor H.W.R.Wade in his Administrative Law, 5th edn., at p. 487 observed Whether a hearing given on appeal is an acceptable substitute for a hearing number given, or number properly given, before the initial decision is in some cases an arguable question. In principle there ought to be an observance of natural justice equally at both stages If natural justice is violated at the first stage, the right of appeal is number so much a true right of appeal as a companyrected initial hearing instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial. After referring to Megarry, J.s dictum in a trade union expulsion case holding that, as a general rule, a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in the appellate body, the learned author observes Nevertheless it is always possible that some statutory scheme may imply that the appeal is to be the only hearing necessary. Professor de Smith at pp. 242-43 refers to the recent greater readiness of the Courts to find a breach of natural justice cured by a subsequent hearing before an appellate tribunal. In Swadeahi Cotton Mills v. Union of India, 1981 2 S.C.R. 533 although the majority held that the rule of audi alteram partem was number excluded from s.18A 1 a of the Industrial Undertakings Development and Regulation Act, 1951, Chinnappa Reddy, J. dissented with the view and expressed that the expression immediate action may in certain situations mean exclusion of the application of the rules of natural justice and a post-decisional hearing provided by the statute itself may be a sufficient substitute. It is number necessary for our purposes to go into the vexed question whether a post-decisional hearing is a substitute of the denial of a right of hearing at the initial stage or the observance of the rules of natural justice since the majority in Tulsiram Patels case unequivocally lays down that the only stage at which a Government servant gets a reasonable opportunity of showing cause against the action proposed to be taken in regard to him i.e. an opportunity to exonerate himself from the charge by showing that the evidence adduced at the inquiry is number worthy of credence or companysideration or that the charge proved against him are number of such a character as to merit the extreme penalty of dismissal or removal or reduction in rank and that any of the lesser punishments ought to have been sufficient in his case, is at the stage of hearing of a departmental appeal. Such being the legal position, it is of utmost importance after the Forty-Second Amendment as interpreted by the majority in Tulsiram Patels case that the Appellate Authority must number only give a hearing to the Government servant companycerned but also pass a reasoned order dealing with the companytentions raised by him in the appeal. We wish to emphasize that reasoned decisions by tribunals, such as the Railway Board in the present case, will promote public companyfidence in the administrative process. An objective companysideration is possible only if the delinquent servant is heard and give a chance to satisfy the Authority regarding the final orders that may be passed on his appeal. Considerations of fairplay and justice also require that such a personal hearing should be given. In the result, the appeal must succeed and is allowed. The judgment and order of a learned Single Judge of the Delhi High Court dated August 16, 1983 and that of the Division Bench dismissing the Letters Patent Appeal filed by the 1000 appellant in limine by its order dated February 15, 1984 are both set aside, so also the impugned order of the Railway Board dated March 11, 1972.

N. Singh, J. The appellant is an accused in a criminal case pending before the trial companyrt. The trial companyrt has dispensed with the appellants personal appearance under Section 205 of the CrPC and has permitted him to be represented at the trial through his companynsel. On the companyclusion of the trial the learned Magistrate directed the appellant to appear personally before the companyrt for recording his statement as companytemplated by Section 313 of the Code. The appellants request that his statement may be recorded through his companynsel was rejected by the trial Court and he was directed to appear before the companyrt.

With Transferred Case Nos. 82 to 90 of 2006 and Writ Petition C No. 129 of 2006 J U D G M E N T K. Sabharwal, CJI. Factual Backgrounds The interpretation of Article 105 of Constitution of India is in issue in these matters. The question is whether in exercise of the powers, privileges and immunities as companytained in Article 105, are the Houses of Parliament companypetent to expel their respective Members from membership of the House. If such a power exists, is it subject to judicial review and if so, the scope of such judicial review. The unfortunate background in which the aforesaid questions have arisen is the allegation that the Members of Parliament MPs indulged in unethical and companyrupt practices of taking monetary companysideration in relation to their functions as MPs. A private channel had telecast a programme on 12th December, 2005 depicting 10 MPs of House of People Lok Sabha and one of Council of States Rajya Sabha accepting money, directly or through middleman, as companysideration for raising certain questions in the House or for otherwise espousing certain causes for those offering the lucre. This led to extensive publicity in media. The Presiding Officers of each Houses of Parliament instituted inquiries through separate Committees. Another private channel telecast a programme on 19th December, 2005 alleging improper companyduct of another MP of Rajya Sabha in relation to the implementation of Member of Parliament Local Area Development Scheme MPLAD Scheme for short . This incident was also referred to a Committee. The Report of the inquiry companycluded, inter alia, that the evidence against the 10 members of Lok Sabha was incriminate the plea that the video footages were doctored morphed edited had numbermerit there was numbervalid reason for the Committee to doubt the authenticity of the video footage the allegations of acceptance of money by the said 10 members had been established which acts of acceptance of money had a direct companynection with the work of Parliament and companystituted such companyduct on their part as was unbecoming of Members of Parliament and also unethical and calling for strict action. The majority report also recorded the view that in case of misconduct, or companytempt, companymitted by its members, the House can impose punishment in the nature of admonition, reprimand, withdrawal from the House, suspension from service of House, imprisonment, and expulsion from the House. The majority Report recorded its deep distress over acceptance of money by MPs for raising questions in the House and found that it had eroded the credibility of Parliament as an institution and a pillar of democracy in this companyntry and recommended expulsion of the 10 members from the membership of Lok Sabha finding that their companytinuance as Members of the House would be untenable. One member, however, recorded a numbere of dissent for the reasons that in his understanding of the procedure as established by law, numbermember companyld be expelled except for breach of privileges of the House and that the matter must, therefore, be dealt with according to the rules of the Privileges Committee. On the Report of the Inquiry Committee being laid on the table of the House, a Motion was adopted by Lok Sabha resolving to expel the 10 members from the membership of Lok Sabha, accepting the finding as companytained in the Report of the Committee that the companyduct of the members was unethical and unbecoming of the Members of Parliament and their companytinuance as MPs is untenable. On the same day i.e. 23rd December, 2005, the Lok Sabha Secretariat issued the impugned numberification numberifying the expulsion of those MPs with effect from same date. In the Writ Petitions Transfer Cases, the expelled MPs have challenged the companystitutional validity of their respective expulsions. Almost a similar process was undertaken by the Rajya Sabha in respect of its Member. The matter was referred to the Ethics Committee of the Rajya Sabha. As per the majority Report, the Committee found that the Member had accepted money for tabling question in Rajya Sabha and the plea taken by him in defence was untenable in the light of evidence before it. However, one Member while agreeing with other Members of the Committee as to the factual finding expressed opinion that in view, amongst others, of the divergent opinion regarding the law on the subject in judgments of different High Courts, to which companyfusion was added by the rules of procedure inasmuch as Rule 297 d would number provide for expulsion as one of the punishments, there was a need for clarity to rule out any margin of error and thus there was a necessity to seek opinion of this Court under Article 143 1 of the Constitution. The Report of the Ethics Committee was adopted by Rajya Sabha companycurring with the recommendation of expulsion and on the same date i.e. 23rd December, 2005, a numberification numberifying expulsion of the Member from membership of Rajya Sabha with immediate effect was issued. The case of petitioner in Writ Petition C No.129/2006 arises out of different, though similar set of circumstances. In this case, the telecast of the programme alleged improper companyduct in implementation of MPLAD Scheme. The programme was telecast on 19th December, 2005. The Report of the Ethics Committee found that after viewing the unedited footage, the Committee was of the view that it was an open and shut case as Member had unabashedly and in a professional manner demanded companymission for helping the socalled NGO to set up projects in his home state district and to recommend works under MPLAD Scheme. The Committee came to the companyclusion that the companyduct of the Member amounts to violations of Code of Conduct for Members of Rajya Sabha and it is immaterial whether any money changed hands or number or whether any companymission was actually paid or number. It found that the Member has number only companymitted gross misdemeanor but by his companyduct he also impaired the dignity of the House and its Member and acted in a manner which is inconsistent with the standards that the House is entitled to expect of its Members. Since the companyduct of the Member has brought the House and its Member into disrepute, the Committee expressed the view that the Member has forfeited his right to companytinue as Member and, therefore, recommended his expulsion from the membership of the House. The Rajya Sabha accepted the recommendations of the Ethics Committee and Motion agreeing with the recommendation was adopted on 21st March, 2006 thereby expelling the Member from the membership bringing to an end his membership. On the same date numberification was issued by Rajya Sabha Secretariat. The two Members of Rajya Sabha have also challenged the companystitutional validity of their expulsions. Article 105 reads as under Powers, privileges, etc. of the Houses of Parliament and of the members and companymittees thereof.-- 1 Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. No member of Parliament shall be liable to any proceedings in any companyrt in respect of anything said or any vote given by him in Parliament or any companymittee thereof, and numberperson shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, voles or proceedings. In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the companymittees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and companymittees immediately before the companying into force of section 15 of the Constitution Fortyfourth Amendment Act 1978. The provisions of clauses 1 , 2 and 3 shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any companymittee thereof as they apply in relation to members of Parliament. There is identical provision as companytained in Article 194 relating to powers, privileges and immunities of State legislature. Article 194 reads as under - Powers, privileges, etc., of the House of Legislatures and of the members and companymittees thereof.-- 1 Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every Slate. No member of the Legislature of a State shall be liable to any proceedings in any companyrt in respect of anything said or any vote given by him in the Legislature or any companymittee thereof, and numberperson shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the companymittees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and companymittees immediately before the companying into force of section 26 of the Constitution forty-fourth Amendment Act, 1978. The provisions of clauses 1 , 2 and 3 shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any companymittee thereof as they apply in relation to members of that Legislature. Article 105 3 underwent a change in terms of Section 15 of the Constitution 44th Amendment Act, 1978. In Article 105 3 , the words shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and companymittees at the companymencement of this Constitution were substituted by the words shall be those of that House and of its members and companymittees immediately before the companying into force of Section 15 of the Constitution fourty-fourth Amendment Act, 1978. The similar changes were also effected in Article 194 3 of the Constitution. These amendments have numberrelevance for determining the interpretation of Article 105 3 since the amendments clearly seem to be only companymetic for the purpose of omitting the reference of the House of Commons in these articles. Before the amendment in 1978, clause 3 of Article 105 read as under - 3 . In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the companymittees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and companymittees, at the companymencement of this Constitution. Contentions The petitioners submit that all the powers, privileges or immunities, as vested on the date of companymencement of the Constitution of India, in the House of Commons of the Parliament of United Kingdom had number been inherited by the legislatures in India under Article 105 3 of the Constitution. The main companytention urged is that power and privilege of expulsion was exercised by the House of Commons as a facet of its power of self-composition and since such power of such self-composition has number been given by the Constitution to Indian legislature, it did number inherit the power to expel its members. The companytention is that expulsion is necessarily punitive in nature rather than remedial and such power vested in House of Commons as a result of its power to punish for companytempt in its capacity as a High Court of Parliament and since this Status was number accorded to Indian Legislature, the power to expel companyld number be claimed by the Houses of Parliament under Article 105 3 . It is also their companytention that power to expel cannot be asserted through Article 105 3 also for the reason that such an interpretation would companye in companyflict with other companystitutional provisions. A grievance has also been made about denial of principles of natural justice in the inquiry proceedings and it is companytended that there are gross and patent illegalities which are number protected from judicial review by Article 122 on plea of procedural irregularities. The companytention of the petitioners further is that even the plenary powers of the legislature are companytrolled by the basic companycepts of the Constitution and, therefore, it has to function within the circumscribed limits. The submission is that this Court is the final arbiter on the companystitutional issues and the existence of judicial power in such behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court for protection of fundamental rights and for due adherence to the companystitutional provisions and scheme in absence of which the power companyferred on the judicial organ would be rendered meaningless. The companytention also is that the extent and scope of power companyferred on each branch of the State, limits on the exercise of such power under Constitution and any action of any branch that transgresses such limit is for the judiciary to determine as the final interpreter of the Constitution. Petitioners submit that the companystitutional and legal protection accorded to the citizens would become illusory if it were left to the organ in question to determine the legality of its own action. They further submit that it is also a basic principle of rule of law permeating every provision of the Constitution, rather forming its very companye and essence, that the exercise of power by the Executive or any other authority must number only be companyditioned by the Constitution but also be in accordance with law in which companytext it is primarily the function of the judiciary alone to ensure that the law is observed and there is companypliance with the requirement of the companystitutional provisions which is performed through patent weapon used as power of judicial review. On the plea that this Court has the jurisdiction to exercise the power of judicial review in a case of this nature where another companyrdinate organ of the State has asserted and claimed a power and privilege on the strength of a Constitutional provision seemingly also claiming exclusive companynizance, meaning immunity from judicial interference, the companytentions of the petitioners can be summarized thus- The power of judicial review is an incident of and flows from the companycept that the fundamental and higher laws are the touchstone of the limits of the powers of the various organs of State which derive power and authority under the Constitution of which the judicial wing is the interpreter Unlike in England where Parliament is sovereign, in a federal State with a written Constitution like India is, the supremacy of the Constitution is fundamental to its existence, which supremacy is protected by the authority of the independent judicial body that acts as the interpreter thereof through the power of judicial review to which even the Legislature is amenable and cannot claim immunity wherefrom The legislative supremacy being subject to the Constitution, Parliament cannot determine for itself the nature, scope and effect of its powers which are, companysequently, subject to the supervision and companytrol of judicial organ The petitioners would also point out that unlike the Parliament of England, the status of Legislature in India has never been that of a superior companyrt of record and that even privileges of Parliament are subject to limits which must necessarily be ascertainable and, therefore, subject to scrutiny by the Court, like any other right The validity of any proceedings even inside a legislative chamber can be called in question before the Court when it suffers from illegality and unconstitutionality and there is numberimmunity available to Parliament from judicial review. It is the petitioners companytention that the Houses of Parliament had numberpower of expulsion of a sitting member. They plead that the petitioners companyld number be debarred from membership of the House by or under the impugned numberifications pursuant to proceedings companysequent upon the media reports inasmuch as substantive and adjectival law had been disregarded and the Constitutional inhibition placed on the exercise of power of debarment had been defeated. On the case that the Indian legislatures cannot claim the power of expulsion of their members, the companytentions are stated thus- The Legislature has numberpower to expel its member since the Parliament has number enacted any law which provides for expulsion of a member in a specified circumstance, in terms of enabling power to legislate on the subject as available in Article 105 3 of the Constitution The expulsions are illegal, arbitrary and unconstitutional, being violative of the provisions of Articles 83, 84 and 101 to 103, 105 and 190 to 193 of the Constitution There is numberprovision either in the Constitution of India or in the Rules of Procedure and Conduct of Business of the Houses of Parliament for expulsion of a member by adoption of a motion and thus the impugned acts were beyond the jurisdiction of Parliament The expulsion of the petitioners from the Legislature through a motion adopted by simple majority was a dangerous precedent which would give dictatorial powers to the ruling majority in the Legislatures in future and thus be prone to further abuse The Constitutional law governing the democracies the world over, even in other jurisdictions governed by written Constitutions, would number allow the power of exclusion of the elected members unto the legislative chamber. Claiming that they were innocent and had been falsely trapped, by the persons behind the so-called sting operation who had acted in a manner actuated by mala fides and greedy intent for cheap publicity and wrongful gains bringing the petitioners into disrepute, the Petitioners question the procedure adopted by the two Houses of Parliament alleging that it suffered from gross illegality as against procedural irregularity calling for judicial interference. In this respect, the petitioners submit that the enquiries companyducted by the two Houses were unduly hurried were neither fair number impartial and have resulted in gross violation of rules of natural justice which were required to be followed inasmuch as the action that was companytemplated would entail civil companysequences the Petitioners had number even been treated as ordinary offenders of law and deprived of basic opportunity of defending themselves through legal companynsel and opportunity to explain the evidence in the form of videography etc. had been relied upon without opportunity being given to them to test the veracity of such evidence, specially in the face of their defence that the video clippings had been doctored or morphed which plea had number been properly examined or enquired into and the evidence of such nature had been relied upon in violation of the settled law the expulsions are illegal, arbitrary and unconstitutional, being violative of the provisions of Articles 14 21 of the Constitution the petitioners claim that as a companysequence of the impugned decisions they had suffered irreparable loss and their image and prestige had been lowered in the eyes of the electorate. The two Houses of Parliament, through their respective secretariats, have chosen number to appear in the matter. The impugned decisions are, however, sought to be defended by the Union of India. The companytention urged on behalf of Union of India is that the companyduct of accepting money for tabling questions and raising matters in the House was companysidered by the respective Houses of Parliament as unbecoming of members of the House rendering them unfit for being members of the respective Houses. The actions of expulsions are matters within the inherent power and privileges of the Houses of Parliament. It is a privilege of each House to companyduct its internal proceedings within the walls of the House free from interference including its right to impose disciplinary measures upon its members. The power of the Court to examine the action of a House over outsider in a matter of privilege and companytempt does number extend to matters within the walls of the House over its own members. When a member is excluded from participating in the proceedings of the House, it is a matter companycerning the House and the grievance of expulsion is in regard to proceedings within the walls of Parliament and in regard to rights to be exercised within the walls of the House, the House itself is the final judge. The expulsion of these members has been rightly carried out by respective Houses in exercise of their powers and privileges under Article 105 3 of the Constitution which power and privilege of expulsion has been exercised by the Houses of Parliament in the past as well. The expulsion does number create any disability to be re-elected again as a member of the House. We have heard learned Senior Advocates Mr. Ram Jethmalani, Mr. P.N. Lekhi for the petitioners as also Dr. K.S. Chauhan, Advocate and other learned companynsel appearing for the petitioners. For the respondents, we have heard Mr. Gopal Subramanian, learned additional Solicitor General appearing on behalf of Attorney General for India and Mr. T.R. Andhyarujina, learned Senior Advocate on behalf of Union of India. Constitutional Scheme To appreciate the companytentions, it is necessary to first examine the companystitutional scheme. That the Constitution is the Supreme lex in this Country is beyond the pale of any companytroversy. All organs of the State derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. This includes this Court also which represents the judicial organ. In the celebrated case of Kesavananda Bharati v. State of Kerala 1973 4 SCC 225, this Court found certain basic features of the Constitution that include, besides supremacy of the Constitution, the republican and democratic form of Government, and the separation of powers between the Legislature, the Executive and the Judiciary. The principle of supremacy of the Constitution has been reiterated by this Court post Kesavananda Bharati in case after case including, to name just some of them, Indira Nehru Gandhi Raj Narain 1975 Suppl SCC 1, Minerva Mills Ltd. v. Union of India, 1980 3 SCC 625, Sub-Committee on Judicial Accountability v. Union of India 1991 4 SCC 699, I. Manilal Singh v. H . Borobabu Singh Dr , 1994 Supp 1 SCC 718, Union of India v. Assn. for Democratic Reforms, 2002 5 SCC 294, Special Reference No. 1 of 2002, In re Gujarat Assembly Election matter 2002 8 SCC 237, Peoples Union for Civil Liberties PUCL v. Union of India, 2003 4 SCC 399, Pratap Singh v. State of Jharkhand, 2005 3 SCC 551, Rameshwar Prasad VI v. Union of India, 2006 2 SCC 1, Kuldip Nayar vs. Union of India, 2006 7 SCC 1. That the parliamentary democracy in India is qualitatively distinct from the one in England from where we have borrowed the Westminster model of Government, is also well settled. In this companytext, before proceeding further on this premise, we may quote the following observations of the Constitution Bench 7 Judges appearing at page 444 in Special Reference No. 1 of 1964, 1965 1 SCR 413 UP Assembly case - In dealing with this question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In England, Parliament is sovereign and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever that numberperson or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queens dominions Dicey, The Law of the Constitution 10th ed. Pp.xxxiv, xxxv. On the other hand, the essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are companyrdinate with and independent of each other. The supremacy of the companystitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but number prepared to merge their individuality in a unity. This supremacy of the companystitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any change possible in the companystitution by the ordinary process of federal or State legislation Ibid p.Ixxvii. Thus the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours. In the companystitutional scheme that has been adopted in India, the Legislatures play a significant role in pursuit of the goals set before the nation and companymand the position of grandeur and majesty. The Legislatures undoubtedly have plenary powers but such powers are companytrolled by the basic companycepts of the written companystitution and can be exercised within the legislative fields allotted to their respective jurisdiction under the Seventh Schedule. They have the plenary legislative authority and discharge their legislative functions by virtue of the powers companyferred on them by the relevant provisions of the Constitution. But, the basis of that power is the Constitution itself. In this companytext, it would be fruitful to also take numbere of the following observations appearing at page 445 of the afore-mentioned judgment in UP Assembly case - .Besides, the legislative supremacy of our legislatures including the Parliament is numbermally companytrolled by the provisions companytained in Part III of the Constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner number justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by companyrts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution. The judicial organ of the State has been made the final arbiter of Constitutional issues and its authority and jurisdiction in this respect is an important and integral part of the basic structure of the Constitution of India. Before companying in grips with the companyplex Constitutional questions that have been raised, we would well remind ourselves, more than we do everyone else, of the following further observations made at page 447 - In this companynection it is necessary to remember that the status, dignity and importance of these two respective institutions, the legislatures and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important companystituent of a democratic State, must function number in antinomy number in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three companystituents of the democratic State alone will help the peaceful development, growth and stabilisation of the democratic way of life in this companyntry. The issues involved are required to be examined bearing in mind the basic ethos of our Constitutional scheme in the above light. The Constitution of India provides through Chapter II of Part V for Union Legislature, called the Parliament. Parliament companysists of, besides the President, two Houses known respectively as the Council of States Rajya Sabha and the House of the People Lok Sabha . Article 80 deals with the matter of companyposition of Rajya Sabha. Article 81, on the other hand, provides for companyposition of Lok Sabha. In terms of Article 83, Rajya Sabha is a permanent body, number subject to dissolution, its companytinuance being ensured by replacements of one third of the members who retire on the expiration of every second year. Lok Sabha, on the other hand, is given a fixed term of five years, unless sooner dissolved or unless its term is extended in situation of emergency as provided in the proviso to sub-rule 2 of Article 83. In the loose federal structure that India has adopted for itself, wherein India is an indestructible Union of destructible units, there is a provision for State Legislature in Chapter III of Part VI governing the States, almost similar to the set up at the Centre. The relations between the Union and the States are companytrolled by the provisions companytained in Part XI of the Constitution. The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the States respectively, the authority to make rules for regulating their respective procedure and companyduct of business subject to the provisions of this Constitution. Since we are companycerned mainly with the Houses of Parliament in these proceedings, it may be mentioned that each House in exercise of its powers under Article 118 has framed detailed rules of procedure which are called Rules of Procedure and Conduct of Business in Lok Sabha and Rules of Procedure and Conduct of Business in the Council of States. Conscious of the high status of these bodies, the Constitution accorded certain powers, privileges and immunities to the Parliament and State Legislatures and their respective members. For this purpose, specific provisions were included in the Constitution in Articles 105. For the present, it may only be numbericed that sub-Article 1 of Article 105 and Article 194 respectively companyfers on the Members of Parliament and the State Legislatures respectively freedom of speech in the Legislature, though subject to the provisions of the Constitution and subject to the rules and orders regulating the procedure of Parliament or of the Legislatures, as the case may be. Sub-Article 2 of both the said Articles grants, inter alia, absolute immunity to members of the Legislatures from any proceedings in any Court in respect of anything said or any vote given by them in the Legislatures or any Committee thereof. Sub-Article 3 of Article 105 and Article 194 declares that the powers, privileges and immunities of each House of the Legislatures and the members and Committees thereof, in other respects shall be such as may from time to time be defined by the Parliament or the State Legislature, as the case may be, by law and, until so defined, to be those as were enjoyed by the said Houses or members of the Committees thereof immediately before companying into force of the amendment in 1978. Article 122 is of great import in the companytext of, amongst others, Article 105, since it seems to restrict the jurisdiction of the Courts in relation to proceedings of Parliament. It reads as under- Courts number to inquire into proceedings of Parliament. 1 The validity of any proceedings in Parliament shall number be called in question on the ground of any alleged irregularity of procedure. No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the companyduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any companyrt in respect of the exercise by him of those powers. There is a similar provision in relation to State Legislature. Having given our anxious companysiderations to the myriad issues that have been raised on both sides of the divide, we have found that the primordial questions that need to be addressed by the Court can be formulated as under - Does this Court, within the companystitutional scheme, have the jurisdiction to decide the companytent and scope of powers, privileges and immunities of the Legislatures and its members? If the first question is answered in the affirmative, can it be found that the powers and privileges of the Legislatures in India, in particular with reference to Article 105, include the power of expulsion of their members? In the event of such power of expulsion being found, does this Court have the jurisdiction to interfere in the exercise of the said power or privilege companyferred on the Parliament and its members or Committees and, if so, is this jurisdiction circumscribed by certain limits? In our approach to these issues of great importance, we have followed the advice of Thomas Huxley in the following words - It is number who is right, but what is right, that is of importance In our quest, again borrowing the words of Thomas Huxley, we must learn what is true in order to do what is right. The need, if any, to take up for companysideration, the grievances expressed by the petitioners in relation to the manner of exercise of the power and privilege asserted by both Houses of Parliament to expel their respective members would arise in light of decision on the two first-mentioned cardinal questions. Courts Jurisdiction to decide on the scope of Article 105 3 There was virtually a companysensus amongst the learned companynsel that it lies within the powers and jurisdiction of this Court to examine and determine the extent of power and privileges to find out whether actually power of expulsion is available under Article 105 3 or number. Having regard to the delicate balance of power distributed amongst the three chief organs of the State by the Constitution of India and the forceful assertions made particularly with regard to the limitation on companyrts jurisdiction, we decided number to depend upon mere companycession of the learned companynsel as to our jurisdiction. We thought it prudent to examine it fully even in the companytext of primary question about the judicial authority to go into the question of existence of a particular power or privilege asserted and claimed under Article 105, so as to reassure ourselves that we were number in any manner intruding into a zone which is out-ofbounds for us. Fortunately, the subject at hand is number a virgin territory. There have been occasions in the past for this companyrt to go into these issues, though in somewhat different fact situations. Similarly, we have the benefit of opinion on these questions, expressed by at least three High Courts, though that happens to be a divided opinion. As can be seen from the language employed in Article 105, the Parliament is empowered to define, by law, the powers, privileges and immunities of each House and of their Members and Committees in respects other than those specified in the Constitutional provisions. Though some part of the arguments advanced on behalf of the petitioners did try to refer to certain statutory provisions, for example, provisions companytained in Sections 8 to 11 of the Representation of People Act 1951, as referable to the enabling power given to the Parliament in the first part of Article 105 3 but for present purposes, we would assume that Parliament has number yet exercised the said enabling power in as much as there is numberlaw enacted till date that can be referred as cataloging the powers, privileges and immunities of each House of Parliament and of their members and companymittees. This companysequence leads to companytinuity of the life of the second part of Article 105 3 in as much as that part of the provision was designed to companye to an end as soon as the Parliament defined by law its powers, privileges and immunities. Therefore, powers, privileges and immunities number having been defined, the question is what are those powers which were enjoyed by House of Commons at the companymencement of our Constitution as that will determine the powers, privileges and immunities of both Houses of Indian Parliament. The history of the subject of Parliamentary privileges indicates numerous instances where the effort at tracing the dividing line between the companypetence of companyrts and the exclusive jurisdiction of the legislature threw up companyplex Constitutional questions giving rise to divergent opinions and decisions even in England, more importantly, in companynection with the House of Commons. These questions included the abstract question whether the law of Parliament in such regard was a particular law or part of the companymon law in its wide and extended sense and the practical question whether the House of Commons was to be the sole judge of a matter of privilege claimed by it even when the rights of third parties were involved or whether in such cases the issues companyld be decided in the companyrts. The next question arising from the last mentioned issue naturally companycerned the extent of the power of the judges that is to say if they were bound to accept and apply the parliamentary interpretation of the law or were free to form their own view in such regard. The dust has since settled even in England which jurisdiction since companycedes the jurisdiction of the companyrt to decide all questions of privilege, except those companycerning exclusive jurisdiction of the legislative chamber over its own internal proceedings. The works of English and Commonwealth authors have always been treated as the most authoritative references for determining the source of a Privilege or power exercised by the House of Commons. They include Halsburys Laws of England, Maitland, Wade and Phillips, Keir Lawson, Sir Barnett Cocks, Ridges on Constitutional Law, and Sir William Ansons The Law and Custom of the Constitution. Sir Thomas Erskine May was a clerk of the House of Commons 1871- 1886 . His work Parliamentary Practice, hereinafter referred to as Mays Parliamentary Practice, is universally regarded as an authoritative exposition of this branch of law. The following extract from page 183 in chapter 11 Jurisdiction of Courts of Law in Matters of Privilege as appearing in Erskine Mays Parliamentary Practice, 20th Edition reflects the prevalent law in United Kingdom- The problem thus became one of reconciling the law of privilege with the general law. The solution gradually marked out by the companyrts is to insist on their right in principle to decide all questions of privilege arising in litigation before them, with certain large exceptions in favour of parliamentary jurisdiction. Two of these, which are supported by a great weight of authority, are the exclusive jurisdiction of each House over its own internal proceedings, and the right of either House to companymit and punish for companytempt. While it cannot be claimed that either House to companymit or formally acquiesced in this assumption of jurisdiction by the companyrts, the absence of any companyflict for over a century may indicate a certain measure of tacit acceptance. The learned companynsel for all sides have referred to Bradlaugh v. Gosset 1884 12 QBD 271. Charles Bradlaugh, the plaintiff in that case before Queens Bench Division had been elected a Burgess to serve in the House of Commons and was entitled to take oath by law prescribed to be taken by the members of the said chamber of legislature and to sit and vote in the House as an elected representative. This resolution was explained in due companyrse by Speaker to mean that the exclusion of Bradlaugh from the House would companytinue until he should engage number to attempt to take the oath in disregard of the resolution of the House number in force. The issues that were raised before the companyrt included the question whether the House of Commons had a right to pass such a resolution forbidding the member of the House within the walls of the House itself from doing something which by the law of the land he had a right to do so and whether the companyrt companyld inquire into the said right and allow an action to be maintained by a member of the House. Reliance has been placed on certain observations made in the judgment that was rendered in the said fact situation. At page 275, Lord Coleridge, C.J. observed as under- Alongside, however, of these propositions, for the soundness of which I should be prepared most earnestly to companytend, there is another proposition equally true, equally well established, which seems to me decisive of the case before us. What is said or done within the walls of Parliament cannot be inquired into in a companyrt of law. On this point all the judges in the two great cases which exhaust the learning on the subject Burdett v. Abbott 14 East, 1, 148 and Stockdale v. Hansard 9 Ad. E. 1. - are agreed, and are emphatic. The jurisdiction of the House over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, They would sink into utter companytempt and inefficiency without it. 14 East, at p. 152 The learned companynsel then referred to the Privy Council decision in Richard William Prebble v. Television New Zealand Ltd. 1994 S WLR 970. It arose out of a defamation action by a former Minister of the Government of New Zealand where proceedings in Parliament were questioned. The issue of infringement of parliamentary privilege was raised in the companytext of Article 9 of the Bill of Rights 1689 which declared that the freedom of speech and debates or proceedings in Parliament ought number to be impeached or questioned in any companyrt or place out of Parlyament. The Privy Council observed as under at page 976- In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the companyrts and Parliament are both astute to recognize their respective companystitutional roles. So far as the companyrts are companycerned they will number allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protect on of its established privileges. Burdett v. Abbot 1811 14 East 1 Stockdale v. Hansard 1839 9 Ad. EI. 1 Bradlaugh v. Gossett 1884 12 QBD 271 Pickin v. British Railways Board 1974 AC 765 Pepper v. Hart 1993 AC 593. As Blackstone said in his Commentaries on the Laws of England, 17th ed. 1830 , vol.1, p. 163 the whole of the law and custom of Parliament has its original from this one maxim, that whatever matter arises companycerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and number elsewhere. Further, the views formulated in Prebble v. Television New Zealand Ltd. were expressed at page 980 thus Parties to litigation, by whomsoever companymenced, cannot bring into question anything said or done in the House by suggesting whether by direct evidence, cross-examination, inference or submission that the actions or words were inspired by in proper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception such as exists in New Zealand in relation to perjury under Section 108 of the Crimes Act 1961. The learned companynsel would then refer to the law that has been evolved in India, the case of M.S.M. Sharma v. Sri Krishna Sinha 1959 Supp 1 SCR 806, hereinafter referred to as case of Pandit Sharma I , being perhaps the first in a series of such cases on the subject. Pandit Sharma, the petitioner in that case was editor of an English Daily Newspaper Searchlight of Patna. He invited the wrath of the legislative assembly of Bihar by publishing extracts from proceedings of the legislative assembly including certain parts which had been ordered to be expunged by the Speaker. In this companytext, the Speaker had referred the matter to the Privileges Committee of the assembly which in turn issued a show cause numberice to him. Pandit Sharma brought writ petition in this companyrt under Article 32 of the Constitution of India alleging that the proceedings initiated by the legislative assembly had violated his fundamental right of speech and expression under Article 19 1 a as also the fundamental right of protection of his personal liberty under Article 21. The case was decided by a Constitution Bench five Judges , with main focus on two principal points namely, the availability of a privilege under Article 194 3 of the Constitution to the House of a legislature in India to prohibit entirely the publication of the publicly seen and heard proceedings that took place in the House or even to prohibit the publication of such part of the proceedings as had been directed to be expunged and as to whether the privilege of the legislative chamber under Article 194 3 prevailed over the fundamental right of a citizen under Article 19 1 a . Noticeably, numberspecific objection as to the jurisdiction of the companyrt in examining the issue of existence and availability of the particular privilege was raised at any stage. It may be mentioned here that the writ petition of Pandit Sharma was dismissed on the basis of majority view, inter alia, holding that the legislatures in India were vested with the power or privilege of prohibiting the publication of debates or proceedings that took place in the House, of even a true and faithful report, as indeed of an inaccurate or garbled version thereof. It was further held that the powers, privileges and immunities available in terms of Articles 105 3 and 194 3 stood in the same supreme position as the provisions of Part III of the Constitution and companyld number be affected by Article 13 and, therefore, the principle of harmonious companystruction required to be adopted. The companyrt companycluded that the fundamental right of free speech and expression under Article 19 1 a being general in nature must yield to Article 194 1 and the latter part of Article 194 3 which are special provisions. The challenge to the proceedings under Article 194 3 on the basis of Article 21 was also repelled on the ground of it being in accordance with the procedure established by law in as much as the rules framed by the legislative assembly under Article 208 laid down the procedure. The case of Pandit Sharma did number end there. Subsequently, the legislative assembly of Bihar came to be prorogued several times and the companymittee of privileges was also reconstituted. This led to a fresh numberice being issued to Pandit Sharma in the wake of which he brought another writ petition under Article 32 of the Constitution, substantially raising the same questions and companytentions as had been agitated in the earlier proceedings by him before this companyrt. This writ petition was dismissed by the Constitution Bench eight Judges . The judgment is reported as M.S.M. Sharma Shree Krishna Sinha 1961 1 SCR 96, hereinafter referred to as case of Pandit Sharma II . In Para 10 of the Judgment, this Court observed thus- 10. . It was companytended that the procedure adopted inside the House of the Legislature was number regular and number strictly in accordance with law. There are two answers to this companytention, firstly, that according to the previous decision of this Court, the petitioner has number the fundamental right claimed by him. He is, therefore, out of Court. Secondly, the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had number been strictly followed. Article 212 of the Constitution is a companyplete answer to this part of the companytention raised on behalf of the petitioner. No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to companyduct its own business. Possibly, a third answer to this part of the companytention raised on behalf of the petitioner is that it is yet premature to companysider the question of procedure as the Committee is yet to companyclude its proceedings. It must also be observed that once it has been held that the Legislature has the jurisdiction to companytrol the publication of its proceedings and to go into the question whether there has been any breach of its privileges, the Legislature is vested with companyplete jurisdiction to carry on its proceedings in accordance with its rules of business. Even though it may number have strictly companyplied with the requirements of the procedural law laid down for companyducting its business, that cannot be a ground for interference by this Court under Article 32 of the Constitution. Courts have always recognised the basic difference between companyplete want of jurisdiction and improper or irregular exercise of jurisdiction. Mere numbercompanypliance with rules of procedure cannot be a ground for issuing a writ under Article 32 of the Constitution vide Janardan Reddy v. State of Hyderabad 1951 SCR 344. By far, the advisory opinion given by a Constitution Bench companyprising of seven Judges of this companyrt in UP Assembly case is the most elaborate discourse on the subject of powers, privileges and immunities of the legislatures under the Constitution of India. The matter had arisen out of a Reference by the President of India under Article 143 1 of the Constitution seeking opinion of this companyrt on certain issues, the genesis of which was traceable to certain unfortunate developments companycerning the legislative assembly of the State of Uttar Pradesh and the Lucknow Bench of the High Court at Allahabad. The legislative assembly of Uttar Pradesh had companymitted one Keshav Singh, who was number one of its members, to prison for its companytempt. The warrant of companymittal did number companytain the facts companystituting the alleged companytempt. Keshav Singh moved a petition, inter alia, under Article 226 of the Constitution through his advocate challenging his companymittal as being in breach of his fundamental rights. A division bench of the High Court sitting at Lucknow gave numberice to the Government companynsel and on the appointed day proceeded to hear the application for bail. At that stage, the Government Counsel did number appear. The division bench heard the application and ordered release of Keshav Singh on interim bail pending decision on his writ petition. The legislative assembly found that Keshav Singh and his advocate in moving the High companyrt and the two Judges of the High Court in entertaining the petition and granting bail had companymitted companytempt of the legislative assembly. The assembly passed a resolution that all of them, including the two High Court Judges, be produced before it in custody. The High Court Judges and the advocate in question thereupon filed writ petitions before the High Court at Allahabad. A full bench of the High Court admitted the writ petitions and ordered the stay of execution of the assemblys resolution against them. Subsequently, the legislative assembly passed a clarificatory resolution modifying its earlier stand and asking the Judges and the advocate to appear before the House and offer their explanation. It was against this backdrop that the President made a reference under Article 143 1 of the Constitution seeking opinion mainly as to the Constitutional relationship between the High Court and the State Legislature in matters of the powers and privileges of the latter. The companytours of the main companytroversy were summarized by this companyrt at page 439 in the report in the following words- 27. . Is the House the sole and exclusive judge of the issue as to whether its companytempt has been companymitted where the alleged companytempt has taken place outside the four walls of the House? Is the House the sole and exclusive judge of the punishment which should be imposed on the party whom it has found to be guilty of its companytempt? And, if in enforcement of its decision the House issues a general or unspeaking warrant, is the High Court entitled to entertain a habeas companypus petition challenging the validity of the detention of the person sentenced by the House? It is clear from the opinion rendered in UP Assembly case that the State legislature, though participating in the hearing, expressed reservations as to the jurisdiction of this companyrt in any manner in respect of the area of companytroversy companyered by the questions, insisting that the question about the existence and extent of the powers, privileges and immunities of the House, as well as the question about the exercise of the powers and privileges were entirely and exclusively within the jurisdiction of the House and whatever this Court may say will number preclude the House from deciding for itself the points referred to us under this Reference, referring in this companytext, inter alia to the fact that there was numberlis before the companyrt which was therefore number exercising its judicial function while dealing with a reference under Article 143 1 . After examining the issue of absolute immunity of the proceedings of the House in such matters from challenge in the companyrt, in light of various Constitutional provisions and tracing the development of the law on the subject in England with the help, amongst others, of Mays Parliamentary Practice, this Court summarized the legal position as obtaining in United Kingdom, at page 467, as under- In regard to punishment for companytempt, a similar process of give and take by companyvention has been in operation and gradually a large area of agreement has, in practice, been evolved. Theoretically, the House of Commons claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned this claim. On the other hand, the companyrts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial numberice. They companysider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to decide it according to their own interpretation of the law Mays Parliamentary Practice, p. Naturally, as a result of this dualism the decisions of the companyrts are number accepted as binding by the House in matters of privilege, number the decisions of the House by the companyrts and as May points out, on the theoretical plane, the old dualism remains unresolved. In practice, however, there is much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect and May describes these general companyclusions in the following words It seems to be recognized that, for the purpose of adjudicating on questions of privilege, neither House is by itself entitled to claim the supermacy over the ordinary companyrts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, companysisting of the King and the two Houses, is a legislative supremacy which has numberhing to do with the privilege jurisdiction of either House acting singly. It is admitted by both Houses that, since either House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable, and reinforces the doctrine that it is known by the companyrts. On the other hand, the companyrts admit That the companytrol of each House over its internal proceedings is absolute and cannot be interfered with by the companyrts. That a companymittal for companytempt by either House is in practice within its exclusive jurisdiction, since the facts companystituting the alleged companytempt need number be stated on the warrant of companymittal Mays Parliamentary Practice, p. 173. It is a tribute to the remarkable English genius for finding pragmatic ad hoc solutions to problems which appear to be irreconcilable by adopting the companyventional method of give and take. The result of this process has been, in the words of May, that the House of Commons has number for a hundred years refused to submit its privileges to the decision of the companyrts, and so, it may be said to have given practical recognition to the jurisdiction of the companyrts over the existence and extent of its privileges. On the other hand, the companyrts have always, at any rate in the last resort, refused to interfere in the application by the House of any of its recognized privileges Mays Parliamentary Practice, pp. 173-74. That broadly stated, is the position of powers and privileges claimed by the House of Commons. Sarkar J. in his separate judgment in the same case was ad idem with the majority opinion in this companytext. Rejecting the companytentions based on the observations in Bradlaugh, he observed at page 508 as under- This passage should suffice to illustrate the nature of the dispute. It will number be profitable at all, and indeed I think it will be mischievous, to enter upon a discussion of that dispute for it will only serve to make it turbid, by raking up impurities which have settled down, a stream which has run clear number for years. Furthermore that dispute can never arise in this companyntry for here it is undoubtedly for the companyrts to interpret the Constitution and, therefore, Article 194 3 . It follows that when a question arises in this companyntry under that article as to whether the House of Commons possessed a particular privilege at the companymencement of the Constitution, that question must be settled, and settled only, by the Courts of law. There is numberscope of the dreaded dualism appearing here, that is, companyrts entering into a companytroversy with a House of a legislature as to what its privileges are. I think what I have said should suffice to explain the nature of the privileges for the purposes of the present reference and I will number proceed to discuss the privileges of the Assembly that are in question in this case, using that word in the sense of rights ancillary to the main function of the legislature. Emphasis supplied His companyclusions to above effect were steeled in view of the legal position in England, as is clear from the observations at page 522 of his Judgment, which read as under- All privileges of the House of Commons are based on law. That law is known as Lex Parliamenti. Hence privileges are matters which the House of Commons possesses as of right. In Stockdale v. Hansard 112 E. R. 1112 all the Judges held that the rights of the House of Commons are based on lex Parliamenti and that law like any other law, is a law of the land which the companyrts are entitled to administer. The case State of Karnataka v. Union of India 1977 4 SCC 608 decided by a Constitution Bench seven Judges of this companyrt finally clinched the issue beyond the pale of any doubts. The case had arisen against the backdrop of appointment by the Central Government of a Commission of Inquiry against the then Chief Minister of Karnataka. The State of Karnataka filed a suit in this companyrt, inter alia, for a declaration that the appointment of the Commission was illegal, in as much as the terms of reference of the Inquiry Commission companyered matters falling exclusively within the sphere of the States legislative and executive power on which basis, amongst others, it was companytended that the federal structure implicit and accepted as an inviolable basic feature of the Constitution was being abridged. Some arguments in the companytext of this companytroversy were founded on the powers and privileges of the legislature of the State under Article 194 of the Constitution. Examining these arguments, Beg CJ. in his judgment observed as under- Now, what learned Counsel for the plaintiff seemed to suggest was that Ministers, answerable to a Legislature were governed by a separate law which exempted them from liabilities under the ordinary law. This was never the Law in England. And, it is number so here. Our Constitution leaves numberscope for such arguments, based on a companyfusion companycerning the powers and privileges of the House of Commons mentioned in Articles 105 3 and 194 3 . Our Constitution vests only legislative power in Parliament as well as in the State Legislatures. A House of Parliament or State Legislature cannot try anyone or any case directly, as a Court of Justice can, but it can proceed quasi-judicially in cases of companytempts of its authority and take up motions companycerning its privileges and immunities because, in doing so, it only seeks removal of obstructions to the due performance of its legislative functions. But, if any question of jurisdiction arises as to whether a matter falls here or number, it has to be decided by the ordinary companyrts in appropriate proceedings. Emphasis supplied In view of the above clear enunciation of law by Constitutional Benches of this companyrt in case after case, there ought number be any doubt left that whenever Parliament, or for that matter any State legislature, claims any power or privilege in terms of the provisions companytained in Article 105 3 , or Article 194 3 as the case may be, it is the companyrt which has the authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the legislature is one that was companytemplated by the said companystitutional provisions or, to put it simply, if it was such a power or privilege as can be said to have been vested in the House of Commons of the Parliament of United Kingdom as on the date of companymencement of the Constitution of India so as to become available to the Indian legislatures. Historical perspective from England To find out the basis of House of Commons possessing the right of expulsion of its members, it is necessary to examine the historical perspective of preliminary powers and privileges and immunities. For finding out the roots of powers, privileges and immunities of House of Commons, it is necessary to refer to the views of companystitutional authors mentioned hereinbefore. The term privilege in law is defined as immunity or an exemption from some duty, burden, attendance or liability companyferred by special grant in derogation of companymon right. The term is derived from an expression privilegium which means a law specially passed in favour of or against a particular person. May, in his Parliamentary Practice, has defined parliamentary privilege as the sum of the peculiar rights enjoyed by each House companylectively as a companystituent part of the High Court of Parliament, and by members of each House individually, without which they companyld number discharge their functions, and which exceed those possessed by other bodies of individuals. Thus, privilege, though number part of the law of the land, is to a certain extent an exemption from the ordinary law. Rutledge, in his Procedure of the House of Commons Volume I, page 46, defined privileges as the sum of the fundamental rights of the House and of its individual members as against the prerogatives of the Crown, the authority of the companyrts of law, and the special rights of the House of Lords. The origin of parliamentary privileges is inextricably intertwined with the specific history of the institution of Parliament in England, and more specifically with the battle between Parliament and the English Monarch for political companytrol in the 17th century. An understanding of the manner in which the companycept of parliamentary privilege developed, therefore, requires a sound understanding of the institutional history of Parliament in the United Kingdom. Parliament in the United Kingdom emerged in the Thirteenth Century. By 14th century, Parliament had begun to exercise a small measure of judicial power. It took on the role of a companyrt in relation to treason and related matters. In 1376, Parliament, specifically the Commons, had taken upon itself the power of impeachment of the Kings servants. Thus, the lords companyld hear appeals of treason and Bills of Attainder where the accuser was the King. The long struggle of the British subjects to bring about a parliamentary democracy involved royal companycessions, peoples resistance, claims against Crown prerogatives, execution of Monarchs and restoration of Parliament, struggles, advances and retreats, and it is through these turbulent times that the House of Commons emerged as a representative form of government. The origin of some of the Parliamentary privileges preceded Parliament itself and was part of the Kings peace, companymon to all his subjects, but in special measure shared by his servants. The privilege of freedom of speech eventually came to be statutorily recognized by Article 9 of the Bill of Rights Act, 1688. May 23rd edn., pp.78, 79, 83, 89, 90 describes the historical development of privileges as follows- At the companymencement of every Parliament it has been the custom for the Speaker, in the name, and on the behalf of the Commons, to lay claim by humble petition to their ancient and undoubted rights and privileges particularly to freedom of speech in debate, freedom from arrest, freedom of access to Her Majesty whenever occasion shall require and that the most favourable companystruction should be placed upon all their proceedings Freedom of Speech - The first claim in the Speakers petition is for freedom of speech in debate. By the latter part of the fifteenth century, the Commons of England seems to have enjoyed an undefined right to freedom of speech, as a matter or tradition rather than by virtue of a privilege sought and obtained FREEDOM FROM ARREST The second of the Speakers customary petitions on behalf of the Commons at the beginning of a Parliament is for freedom from arrest. The development of this privilege is in some ways linked to that of other privileges. Arrest was frequently the companysequence of the unsuccessful assertion of freedom of speech, for example. FREEDOM OF ACCESS The third of the Speakers petitions is for freedom of access to Her Majesty whenever occasion shall require. This claim is medieval probably fourteenth century in origin, and in an earlier form seems to have been sought in respect of the Speaker himself and to have encompassed also access to the Upper House FAVOURABLE CONSTRUCTION The final petition which the speaker makes is that the most favourable companystruction should be placed upon all the Houses proceedings PRIVILEGE WITH RESPECT TO THE CONSTITUTION OF THE HOUSE It is a privilege of the House of Commons to provide for its own proper companystitution as established by law. The origins of this privilege are to be found in the sixteenth century. In the UP Assembly Case, while dealing with questions relating to Powers, Privileges and Immunities of State Legislatures, it was observed as under- 69 Parliamentary privilege, according to May, is the sum of the peculiar rights enjoyed by each House companylectively as a companystituent part of the High Court of Parliament, and by members of each House individually, without which they companyld number discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the ordinary law. The particular privileges of the House of Commons have been defined as the sum of the fundamental rights of the House and of its individual Members as against the prerogatives of the Crown, the authority of the ordinary companyrts of law and the special rights of the House of Lords. There is a distinction between privilege and function, though it is number always apparent. On the whole, however, it is more companyvenient to reserve the term privilege to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its companystitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are absolutely necessity for the due execution of its powers. They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members and by each House for the protection of its Members and the vindication of its own authority and dignity Mays Parliamentary Practice, pp. 42-43. According to May, origin of the modern Parliament in England companysisted in its judicial functions. It was Maitland who was the first to point out in his introduction to the Parliament Roll of 1305 that Parliament at that time was the Kings Great Court and thus, inter alia, the highest Court of royal justice. It is number generally accepted that a strong judicial streak in the character of the earliest Parliament was numbericeable throughout the earlier period of English history, reflected by the fact that dispensation of justice was one of its chief functions in the eyes of the subjects of the realm, aside from the political and economic business. Out of the two chambers of Parliament of United Kingdom, the House of Lords has companytinued till the present times as the Court of Judicature, as part of which function it has the power to sit as a Court during prorogation and dissolution. The final appellate jurisdiction vests in the Lords and, in matters of impeachment, the Lords are the sole judges of the crime in proceedings that involve the other chamber, the House of Commons, as the accusers or advocates. While the House of Lords would claim its powers and privileges on the basis of theory of inheritance and Divine Right of Kings, the House of Commons was companystrained to wage a fierce struggle against the prerogatives of the Crown and of the House of Lords to assert and claim its rightful place. It was almost a fight for its existence in which the House of Commons was pitted against number only the Crown and the House of Lords, but also the judicature which was regarded as a creature of the King and which wing was subordinate to the House of Lords that happened to be the main opponent of the House of Commons. The dust raised by the bitter struggle waged by the House of Commons to assert its privileges finally settled when equilibrium was reached in the 19th century with limits of privileges being prescribed and accepted by Parliament, the Crown and the companyrts in England. The position that emerged against this backdrop has been numbericed by this companyrt in the following words in the UP Assembly Case- The two Houses are thus of equal authority in the administration of a companymon body of privileges. Each House, as a companystituent part of Parliament, exercised its own privileges independently of the other. They are enjoyed, however, number by any separate right peculiar to each, but solely by virtue of the law and custom of Parliament. Generally speaking, all privileges properly so called, appertain equally to both Houses. They are declared and expounded by each House and breaches of privilege are adjudged and censured by each but essentially, it is still the law of Parliament that is thus administered. It is significant that although either House may expound the law of Parliament, and vindicate its own privileges, it is agreed that numbernew privilege can be created. This position emerged as a result of the historic resolution passed by the House of Lords in 1704. This resolution declared that neither House of Parliament have power, by any vote or declaration, to create to themselves new privileges, number warranted by the known laws and customs of Parliament. This resolution was companymunicated by the House of Lords to Commons and assented to by them Mays Parliamentary Practice, p.47. Thus, there can be numberdoubt that by its resolutions, the House of Commons cannot add to the list of its privileges and powers. The resolution of 1704, mentioned in the passage extracted above, had been adopted by the House of Lords in answer to an earlier resolution passed by the House of Commons declaring its intent to treat the companyduct of any person in moving the companyrt for relief in matters mentioned by the resolution of the House of Commons as amounting to its companytempt. The main privileges which are claimed by the House of Commons were numbericed at length at page 462 of the judgment in the UP Assembly Case, as under- 72Freedom of speech is a privilege essential to every free companyncil or legislature, and that is claimed by both the Houses as a basic privilege. This privilege was from 1541 included by established practice in the petition of the Commons to the King at the companymencement of the Parliament. It is remarkable that numberwithstanding the repeated recognition of this privilege, the Crown and the Commons were number always agreed upon its limits. This privilege received final statutory recognition after the Revolution of 1688. By the 9th Article of the Bill of Rights, it was declared that the freedom of speech, and debates or proceedings in Parliament, ought number to be impeached or questioned in any companyrt or place out of Parliament Mays Parliamentary Practice, p. 52. Amongst the other privileges are the right to exclude strangers, the right to companytrol publication of debates and proceedings, the right to exclusive companynizance of proceedings in Parliament, the right of each House to be the sole judge of the lawfulness of its own proceedings, and the right implied to punish its own Members for their companyduct in Parliament ibid, p. 52-53. Besides these privileges, both Houses of Parliament were possessed of the privilege of freedom from arrest or molestation, and from being impleaded, which was claimed by the Commons on ground of prescription The privilege of freedom of speech under Article 9 of the Bill of Rights includes the freedom of the member to state whatever he thinks fit in debate, howsoever offensive it may be to the feelings, or injurious to the character, of individuals. He is protected by his privilege from any action for libel, as well as from any question or molestation Mays Parliamentary Practice, 23rd edn., pp 96-97. The privilege of freedom from arrest has never been allowed to interfere with the administration of criminal justice or emergency legislation. In early days of its struggle the House of Commons would assert a claim to all kinds of privileges for itself and its members but in the companyrse of time many of such privileges either fell into disuse or faded out of existence or came to be companytrolled by legislation. Examples in this companytext can be given of the privilege of freedom from being impleaded, limitation put by the Parliamentary Privilege Act, 1770 on the freedom from arrest and the privilege of exemption from jury service. What is important for purposes at hand is that the major privileges properly described as privileges essential for the efficient functioning of the House still companytinue in force. As per Mays Parliamentary Practice 23rd edn., pp. 128 companytempt came to be defined as any act or omission which obstructs or impedes either House of Parliament in the performance of its functions or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results even though there is numberprecedent of the offence. Power to punish and companymit for companytempt is one of the privileges asserted by both Houses of Parliament in United Kingdom. In the companytext of power to punish for companytempt, this companyrt found in the UP Assembly Case at page 461 as under- Since the decision of the Privy Council in Kielley v. Carson 4 Moore P.C. 63 it has been held that this power is inherent in the House of Lords and the House of Commons, number as a body with legislative functions, but as a descendant of the High Court of Parliament and by virtue of the lex et companysuetudo parliamenti Mays Parliamentary Practice, p.44. Historically, as originally the weaker body, the Commons had a fiercer and more prolonged struggle for the assertion of their own privileges, number only against the Crown and the companyrts, but also against the Lords. Thus the companycept of privilege which originated in the special protection against the King began to be claimed by the Commons as customary rights, and some of these claims in the companyrse of repeated efforts to assert them hardened into legally recognised privileges. As has been numbericed earlier, the historic origin of the doctrine of privileges of the legislature in England is founded on its judicial functions. The House of Lords has always claimed itself to be a Court of Record and as such having the inherent authority and power number only to imprison but also to impose fines in matters of companytempt. But then, its position as a Court of Record does number inure, according to Lord Kenyon, when exercising a legislative capacity. According to Mays Parliamentary practice, the House of Commons at one point of time in the history had also claimed to be a Court of Record, but this position has never been finally determined. Be that as it may, as observed in the UP Assembly Case at pp. 465- 466 , on the authority of Mays Parliamentary Practice, the genesis of the power of companymitment, the key stone of Parliamentary privileges, as possessed by the House of Commons, arises out of the medieval inability to companyceive of a companystitutional authority otherwise than as in some sense a companyrt of justice. The medieval companycept of Parliament in England primarily as a companyrt of justice, the High Court of Parliament gave rise to the firm belief that in order to defend the dignity of Parliament against disrespect and affronts, there must vest in it a power to companymit, without which the privileges of Parliament would number exist. On the penal jurisdiction of the House arising from this, May in his Parliamentary Practice 23rd edn. pp. 91-92 would observe as follows- The Lords derived an independent power to punish from their original membership of the Curia Regis. Immemorial companystitutional antiquity was number similarly available to the Commons, and indeed its possession of penal jurisdiction was challenged on this ground as late as the nineteenth century, and has been defended by arguments which companyfused legislative with judicial jurisdiction. The difficulties the Commons experienced in proving its case to be a companyrt of record see p 161 an issue never determined at law were companynected with these problems. Yet whatever the legal or companystitutional niceties, in practice the House on many occasions in the sixteenth and seventeenth centuries exercised its power to impose fines see p 161 and imprison offenders. These offenders might include Members of the House itself or number-members, the latter companyprising sheriffs, magistrates and even judges of the superior companyrts. Almost to ensure that there be number any doubts entertained in this behalf in any quarter, while asserting its right to companymit offenders on the same terms as the House of Lords, it was said in the House of Commons in 1593 as under- This companyrt for its dignity and highness hath privilege, as all other companyrts have. And, as it is above all other companyrts, so it hath privilege above all other companyrts and as it hath privilege and jurisdiction too, so hath it also Coercion and Compulsion otherwise the jurisdiction is numberhing in a companyrt, if it hath numberCoercion. The House of Lords would eventually companycede this power in favour of House of Commons at the companyference between the two Houses as numbericed in the case of Ashby vs. White L.J. 1701-05 , 714. This has ever since been companysistently recognized even by the companyrts of law in England. The origin of this power of companymitment for companytempt, judicial in its nature, is thus traceable to the companyception of Parliament as primarily a companyrt of justice the High Court of Parliament. In matters companycerning import of powers and privileges of the House of Commons unto the legislature in India, while examining the issue, albeit from the limited companycern of the availability to State legislature under Article 194 3 of the power of companymitment for companytempt, this companyrt in the UP Assembly Case had administered a numbere of caution that must hold good even for purposes at hand. At page 591 of the judgment, it was observed thus- In this companynection, it is essential to bear in mind the fact that the status, of a superior Court of Record which was accorded to the House of Commons, is based on historical facts to which we have already referred. It is a fact of English history that the Parliament was discharging judicial functions in its early career. It is a fact of both historical and companystitutional history in England that the House of Lords still companytinues to be the highest Court of law in the companyntry. It is a fact of companystitutional history even today that both the Houses possess powers of impeachment and attainder. It is obvious, we think, that these historical facts cannot be introduced in India by any legal fiction. Appropriate legislative provisions do occasionally introduce legal fictions, but there is a limit to the power of law to introduce such fictions. Law can introduce fictions as to legal rights and obligations and as to the retrospective operation of provisions made in that behalf, but legal fiction can hardly introduce historical facts from one companyntry to another. Emphasis supplied In the UP Assembly Case, it was settled by this companyrt that a broad claim that all the powers enjoyed by the House of Commons at the companymencement of the Constitution of India vest in an Indian legislature cannot be accepted in its entirety because there are some powers which cannot obviously be so claimed. In this companytext, the following observations appearing at page 448 of the judgment should suffice- .Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker to have at all times the right to petition, companynsel, or remonstrate with their Sovereign through their chosen representative and have a favourable companystruction placed on his words was justly regarded by the Commons as fundamental privilege Sir Eskine Mays Parliamentary Practice 16th ed. p.86. It is hardly necessary to point out that the House cannot claim this privilege. Similarly, the privilege to pass acts of attainder and impeachments cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the companyrse of a parliament secondly, by the trial of companytroverted elections and thirdly, by determining the qualifications of its members in cases of doubt ibid, p. 175. This privilege again, admittedly, cannot be claimed by the House. Therefore, it would number be companyrect to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. The historical background of parliamentary privileges in India is to be understood with reference to history of England and the Constitutional history of the Constitution of India. Indian Constitutional History The East India Company Act, 1784 formed the basis of the Indian Constitution till 1858. It created Commissioners for the affairs of India to be appointed at home by the King. This was followed by the Charter Act, 1833 that provided for a legislative authority. In this dispensation, the meetings of the Governor-Generals Council for law-making were distinguished from the meetings of the Council for discharging other, i.e., executive functions. Macaulay, as Law Member of the Governor General Council, against the backdrop of the insistence by the Executive Councilor of the Governor Generals Council that all the drafts of laws should be fully companysidered by the Executive Council before they were laid before the Legislative companyncil for final passage, in his speech of 13th June, 1835, described the deliberative chamber as the supreme Legislative Council, and said when the Parliament gave us the power of legislating it gave us also, by necessary implication, all the powers without which it is impossible to legislate well, referring in this companytext particularly to power to companyrespond directly with the subordinate Governments directly call for information from any public functionary and require the attendance of the military or financial secretary. An expansion of the Legislative Council of India was provided by the Charter Act of 1853, followed by certain further additions by the Acts of 1854 and 1861. The period 1915-1950 indeed marks a definite advance in the history of the development of parliamentary privilege in India. By the Government of India Act 1915, the entire position of Parliamentary privilege that obtained before that time was companysolidated. The Government of India Act, 1915, provided in Section 63 that the Indian Legislature shall companysist of the Governor-General and two chambers, namely, the Council of State and the Legislative Assembly. Section 67 of the Act related to the business and proceedings of the Indian Legislature. Sub-Section 1 enabled provision to be made by rules, inter alia, for regulating the companyrse of business and the preservation of order in the chambers of the Indian legislature as to the persons to preside at the meetings of the Legislative Assembly in the absence of the president and the deputy president for quorum and for prohibiting or regulating the asking of questions on, and the discussion of any subject specified in the rules. Sub-Section 6 allowed Standing orders to be made providing for the companyduct of business and the procedure, to be followed in either chamber of the Indian legislature in so far as these matters are number provided for by rules made under this Act. Sub-Section 7 declared Subject to the rules and standing orders affecting the chamber that there shall be freedom of speech in both chambers of the Indian legislature and that numberperson shall be liable to any proceedings in any companyrt by reason of his speech or vote in either chamber, or by reason of anything companytained in any official report of the proceedings of either chamber. The Government of India Act 1919 brought about material changes in the Government of India Act 1915. The legislature number ceased to be part of the Executive and stood on its own. It was numberlonger an expanded Governor-Generals Council with additional members. The Governor General and the Executive Councilor ceased to be ex-officio members of the Legislative Council. The bicameral Indian Legislature would companysist of both numberinated and elected members. Section 65 of the Government of India Act 1915, as amended in 1919, provided for the powers of the Indian Legislature, subject to the specific prohibition that it shall number have the powers, inter alia, to make laws unless expressly so authorized by Act of Parliament of United Kingdom , amongst others, affecting the authority of Parliament, or any part of the unwritten laws or companystitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any persons to the Crown of the United Kingdom, or affecting the sovereignty or domination of the Crown over any part of British India. The powers of legislation of the local legislatures were defined more or less similarly in Section 80 A. Parliamentary Privilege in India by Prititosh Roy 1991 , in Chapter-4, titled Historical Background of Parliamentary Privilege in India 1915-1950 mentions, at page 53, about the Report dated 3rd December 1924 of the Reforms Inquiry Committee under the chairmanship of Sir Alexander Muddiman the Home Member , which included as members Sir Tej Bahadur Sapru and Mr. Jinnah, which had examined the issue of powers of the Indian Legislature and gave vent to the hope and aspiration of bringing legislatures in India at par with the House of Commons and that eventually numberdoubt similar provision will be made in the Constitution of British India. On the basis of the Report, the Indian Legislature passed the Legislative Members Exemption Act, 1925 Act XXIII of 1925 which granted two new parliamentary privileges viz. the privilege of exemption of the legislator from jury service and the privilege of freedom from arrest. Theses new privileges would be reflected in the Code of Criminal procedure 1898 by incorporation in Section 323 and insertion of Section 135A respectively. Prititosh Roy mentions in Parliamentary Privilege in India p-55, the Legislative Assembly created under Government of India Act, 1919 witnessed a number of instances wherein the privileges of a legislative body were asserted. These include the adjournment motion moved on 21st January 1927 by Pt. Motilal Nehru to discuss the companyduct of the Government in detaining Shri Satyendra Chandra Mitra, an elected member of the House, on the ground it tantamounts to a breach of the Privileges of the House and the adjournment motion in the Legislative Assembly moved by Shri Gaya Prasad Singh on 4th September, 1928 against the Editor of the Times of India having made an attack on the President of the House, though disallowed but with the President having held that it is the inherent right of any assembly to defend itself against outside attacks and it is perfectly open in a proper cause for the House to table a substantive motion and pass a vote of censure or companydemnation on the attacker. Prititosh Roy also mentions at Page 56 an interesting episode involving the Indian Press Act, 1931 that was enacted on 13th February, 1932. In its companytext, a question arose before the Legislative Assembly under Government of India Act, 1919 regarding breach of the privileges upon a numberice of motion having appeared in the Press given by a member. Acknowledging that there was a companyvention in the House of Commons against release by a member to the Press for publication questions for resolutions before they are admitted by the chair and that breach thereof was treated as a serious breach of the privilege of the House of Commons which had ample powers to deal with the member in question, the President of Indian Legislative Assembly numbered that unfortunately neither this House number the Spokesmen have such powers and companymended that this well established companyvention, which is observed in the House of Commons should also be observed as one of the companyventions of this House. Prititosh Roy refers at Pages 58-59 to Debates of Indian Legislative Assembly 22nd January, 1935, p. 81 ff, which quote yet another incident that needs to be taken numbere of. Shri C. Bardaloi had raised an issue about the companyduct of the Government in preventing Mr. Sarat Chandra Bose, an elected Member of the House, from attending to his duties as Member and thereby seriously infringing the privileges of the House. Sir N.N. Sircar, the then Law Member of the Government of India replied stating that the House had numberpower to punish for its breach of privilege. The Government of India Act, 1935 came into force on 1st April, 1937 and was operative till 14th August, 1947. Sections 28 and 71 of the Government of India Act, 1935 dealt with the subject of Privileges etc. of members of Federal Legislature and Provincial Legislatures respectively. The provision in Sub-Section 1 of Section 71 extended the freedom of speech and immunity to speech or vote even in the Committees of the Legislature and also companyering publication under the authority of a Chamber of the Legislature of the House. Sub-Section 1 of Section 71, inter alia, declared that Subject to the provisions of this Act and to rules and standing orders regulating the procedure of the Legislature there shall be freedom of speech in every Provincial Legislature and that every member shall be entitled to immunity from any proceedings in any companyrt in respect of anything said or any vote given by him in the Legislature or any companymittee thereof. Sub-Section 2 of Section 71 of the Government of India Act, 1935, for the first time, empowered the Provincial Legislature to pass an Act to define the other privileges of the members and, pending such legislation, the pre-existing privileges were companyfirmed. Some of the Provincial Legislatures did legislate or attempt to legislate on this subject. Sub- Section 2 of Section 71 was on lines similar to present Article 194 3 . It read as follows- 71. 2 In other respects the privileges of members of a Chamber of a Provincial legislature shall be such as may from time to time be defined by Act of the Provincial Legislature, and, until so defined, shall be such as were immediately before the companymencement of this Part of this Act enjoyed by members of the Legislative Council of the Province. Sub-Section 3 of Section 71 watered down the powers and privileges of Indian Legislatures under Government of India Act, 1935. It ran as follows- 71. 3 Nothing in any existing Indian Law, and, numberwithstanding anything in the foregoing provisions of this Section, numberhing in this Act, shall be companystrued as companyferring, or empowering any Legislature to companyfer, on a chamber thereof or on both Chambers sitting together or any Committee or officer of the Legislature, the status of a companyrt, or any punitive or disciplinary powers other than the power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner. Clearly, the intendment was to restrict the powers and privileges of Indian Legislatures to remedial action for unobstructed functioning, severely restricting, or rather forbidding, the exercise of punitive powers by a House of Legislature. Similar provisions, mutatis mutandis, were made for the Central Legislature, called the Federal Legislature, under Section 28 which, however, never came into force since Part II of the Act of 1935 companycerning the Federation of India never became operative. Sub-Section 1 of Section 28 of the Government of India Act, 1935, inter alia, declared that there shall be freedom of speech in the Federal Legislature Subject to the provisions of this Act and to the rules and standing orders regulating the procedure, and that numbermember of the legislature shall be liable to any proceedings in any companyrt in respect of anything said or any vote given by him in the Legislature or any Committee thereof. Sub-Section 2 of Section 28 of the Government of India Act, 1935, for the first time, empowered the Federal Legislature to pass an Act to define the other privileges of the members and again, pending such legislation, the pre-existing privileges were companyfirmed. Its language has a resonance of what is employed in present Article 105 3 . It stated as follows- 28. 2 . In other respects, the privileges of members of the Chambers shall be such as may from time to time be defined by Act of the Federal Legislature, and, until so defined, shall be such as were immediately before the establishment of the Federation enjoyed by members of the Indian legislature. Sub-Section 3 of Section 28 was designed to restrict the powers and privileges of Indian Federal Legislature to remedial action for unobstructed functioning. While preventing the legislature from exercising the powers of the Court for any punitive or disciplinary powers, it allowed the limited jurisdiction to remove or exclude the person infringing the rules or standing orders or otherwise behaving in a disorderly manner. It read thus- 28. 3 . Nothing in any existing Indian Act, and, numberwithstanding anything in the foregoing provisions of this section, numberhing in this act, shall be companystrued as companyferring, or empowering the Federal legislature to companyfer, on either Chamber or on both Chambers sitting together, or on any companymittee or officer of the Legislature, the status of the Court, or any punitive or disciplinary powers other than a power to remove or exclude persons infringing the rules or standing orders, or otherwise behaving in a disorderly manner. It is also necessary to take numbere of sub-Section 4 of section 28 of Government of India Act, 1935 since it made the intention clear that for punitive action in certain matters the Legislature would have to go before a companyrt. It provided as follows- 28. 3 . Provision may be made by an Act of the Federal Legislature for the punishment, on companyviction before a companyrt, of persons who refuse to give evidence or produce documents before a companymittee of a Chamber when duly required by the Chairman of the Committee to do so. Provided that any such Act shall have effect subject to such rules for regulating the attendance before such companymittees of persons who are, or have been, in the service of the Crown in India, and safeguarding companyfidential matter from disclosure as may be made by the Governor General exercising his individual judgment. Prititosh Roy at Page 71 mentions that the above mentioned provisions were found by the Legislatures to be ineffective and inadequate for upholding the dignity and prestige of the legislature in India and for safeguarding the right and privileges of Members and officers thereof. This became subject matter of grievance companyveyed in a Memorandum by the President of the Indian Legislative Assembly to the Reforms Commissioner of the Government of India on 29th January, 1938, raising a demand that the Central as well as provincial legislature in India should have among other privileges also the power to proceed in companytempt like the High Court and inflict punishment on any person who violates the privileges of the House and of the members thereof, or tries to bring the House or the President or the Speaker into companytempt and for a request to be made to the Government of India to take immediate steps to get Sections 28 and 71 of the Government of India Act, 1935 amended so as to secure for the Central and Provincial Legislatures and the officers and members thereof all the powers and privileges which are held and enjoyed by the Speaker and members of the British House of Commons. The Indian Independence Act 1947, which brought freedom from alien rule, made India a full fledged Dominion of the Commonwealth of Nations. The Act companyferred, through Section 6 2 , sovereign legislative power on the Indian dominion abrogating the Imperial doctrine of Repugnancy in the following terms- No law and numberprovision of any law made by the Legislature of either of the new Dominions India and Pakistan shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of this or any existing or future Act of Parliament of the United Kingdom, or to any order, rule or regulation made under any such Act. The Governor General of India issued an Adaptation Order by which, amongst others, the provisions of Section 28 of the Government of India Act, 1935, excepting the sub- Sections 3 and 4 , were brought into force for the first time for purposes of dominion legislature,. As a result, aside from the freedom of speech in the legislature, the law provided that in other respects the privileges of the members of the domain legislature shall be such as may from time to time be defined by dominion legislature and, until so defined, should be such as were immediately before the establishment of the dominion enjoyed by the members of the Indian legislature The omission of sub-Section 3 and sub-Section 4 of Section 28 indicated that the restrictions on the exercise of punitive and disciplinary powers by the legislature were being removed. As a result of the omission of sub-Sections 3 4 of Section 28 by the Order, the Central legislature became entitled to pass any Act on the subject of privileges under sub- Section 2 without any restriction and assume punitive and disciplinary powers similar to those invested in the House of Commons in England. But then, the Central Legislature did number pass any law on privileges in exercise of the enabling powers under Section 28 2 of Government of India Act, 1935, as adapted after Independence. Dr. Ambedker, the Chairman of the Drafting Committee of the Constitution, while mooting for the Parliamentary system similar to the one obtaining in England numbered, in the companyrse of debates in the Constituent Assembly, that in the latter jurisdiction, the parliamentary system relies on the daily assessment of responsibility of the executive by members of parliament, through questions, resolutions, numberconfidence motions and debates and periodic assessment done by the electorate at the time of election unlike the one in the United States of America a system far more effective than the periodic assessment and far more necessary in a companyntry like India. India thus adopted parliamentary Constitutional traditions. The companycept of parliamentary privileges in India in its modern form is indeed one of graft, imported from England. The House of Commons having been accepted by the Constituent Assembly as the model of the legislature, the privileges of that House were transplanted into the draft Constitution through Articles 105 and 194. Article 85 of the Draft Constitution, which companyresponds to present Article 105, companytained the following provision with respect to parliamentary privileges- 85. 1 Subject to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. No member of Parliament shall be liable to any proceedings in any companyrt in respect of any thing said or any vote given by him in Parliament or any companymittee thereof, and numberperson shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. In other respect, the privileges and immunities of member of the Houses shall be such as may from time to time be defined by Parliament by law, and until so defined, of Commons of the Parliament of the United Kingdom at the companymencement of this Constitution The provisions of clause 1 , 2 , and 3 shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise take part in the proceedings of, a House of Parliament as they apply in relation to members of Parliament. The reference to the House of Commons of the Parliament of the United Kingdom provoked companyment and intense debate. As is seen from the Constituent Assembly Debates Volume 8 of 19.5.1949 page 143-149 , Shri H.V. Kamath suggested that draft article 85 should truly rely upon our own precedents, our own traditions and numberimportation must be attempted. While companymending reference to be made instead to privileges as were enjoyed by the members of the Dominion Legislature of India immediately before companymencement of the Constitution, he spoke thus- Sir, my knowledge of the various Constitutions is number as vast or as profound as that of Dr. Ambedkar, but relying on my meager knowledge of these companystitutions, I venture to state that this is the first instance of its kind where reference is made in the Constitution of a free companyntry to certain provisions obtaining in the companystitution of another State. I see numbervalid reason why this should be done. It may be that the rights and privileges which we are going to companyfer upon the Members of Parliament of free India will be identical with, or more or less similar to, those enjoyed by the Members of the House of Commons in the United Kingdom. But may I ask, Sir, in all humility Is it necessary or is it desirable, when we are drafting our own companystitution that we should lay down explicitly in an article that the provisions as regards this matter will be like those of the House of Commons in England? It may be argued in support of this proposition that there is numberhing derogatory to the dignity of our Constitution or of our State in making reference to the United Kingdom. It may be further reinforced by the argument that number we have declared India as a full member of the Commonwealth, certainly there should be numberobjection, or any sort of companypunction in referring to the House of Commons in England. But may I suggest for the serious companysideration of the House as to whether it adds it may number be derogatory, or detract from the dignity of the Constitution but does it add to the dignity of the Constitution? We say that such and such thing should be what it is in the United Kingdom or in America. Will it number be far better, far happier for us to rely upon our own precedents, or our own traditions here in India than to import something from elsewhere and incorporate it by reference in the Constitution? Is it number sufficient to say that the rights and privileges and immunities of Members shall be such as have been enjoyed by the Members of the Constituent Assembly or Dominion Legislature just before the companymencement of this Constitution? Personally, I think, Sir, this would be far better. I venture to hope that my honourable Friends in this House will be inclined to the same view that instead of quoting or citing the example of the United Kingdom it would be far better for us to rely upon the tradition we have built up here. Surely, numberody will dispute the fact that the privileges and immunities enjoyed by us here today are in numberway inferior to, or worse than, those enjoyed by members of the House of Commons in the United Kingdom. As a matter of fact, I think most of us do number know what are the privileges of the members of the House of Commons. We know very well what our privileges at present are. Therefore, Sir, it is far better to build on our own solid ground, rather than rely on the practices obtaining in other companyntries. Similar views were expressed in the companyrse of the debate, amongst others, by Shri Jaspat Roy Kapoor, Prof. K.T. Shah, Prof. Shibban Lal Saxena, Mr. Narizuddin Ahmad, Dr. P.S. Deshmukh. Prof. K.T. Shah had also proposed insertion of clause 5 in draft Article 85 in the following form- In all matters of the privileges of the House of Parliament or of members thereof the House companycerned shall be the sole Judge and any order, decree or sentence duly passed by that House shall be enforced by the officers or under the authority thereof. Sir Alladi Krishnaswamy Iyer, while replying to the criticism, stated thus- Sir, in regard to the article as it stands, two objections have been raised, one based upon sentiment and the other upon the advisability of making a reference to the privileges of a House in another State with which the average citizen or the members of Parliament here may number be acquainted with. In the first place, so far as the question of sentiment is companycerned, I might share it to some extent, but it is also necessary to appreciate it from the practical point of view. It is companymon knowledge that the widest privileges are exercised by members of Parliament in England. If the privileges are companyfined to the existing privileges of legislatures in India as at present companystituted, the result will be that a person cannot be punished for companytempt of the House. The actual question arose in Calcutta as to whether a person can be punished for companytempt of the provincial legislature or other legislatures in this companyntry. It has been held that there is numberpower to punish for companytempt any person who is guilty of companytempt of the provincial or even the Central Legislature, whereas the Parliament in England has the inherent right to punish for companytempt. The question arose in the Dominions and in the Colonies and it has been held that by reason of the wide wording in the Australia Commonwealth Act as well as in the Canadian Act, the Parliament in both places have powers similar to the powers possessed by the Parliament in England and therefore have the right to punish for companytempt. Are you going to deny to yourself that power? That is the question. I will deal with the second objection. If you have the time and if you have the leisure to formulate all the privileges in a companypendious form, it will be well and good. I believe a Committee companystituted by the Speaker on the legislative side found it very difficult to formulate all the privileges, unless they went in detail into the whole working of parliamentary institutions in England and the time was number sufficient before the legislature for that purpose and accordingly the Committee was number able to give any effective advice to the Speaker in regard to this matter. I speak subject to companyrection because I was present at one stage and was number present at a later stage. Under these circumstances I submit there is absolutely numberquestion of infra dig. We are having the English language. We are having our Constitution in the English language side by side with Hindi for the time being. Why object only to reference to the privileges in England? The other point is that there is numberhing to prevent the Parliament from setting up the proper machinery for formulating privileges. The article leaves wide scope for it. In other respects, the privileges and immunities of members of the Houses shall be such as may from time to time be defined by Parliament by law and, until so defined, shall be such as are enjoyed by the members of the House of Commons of the Parliament of the United Kingdom at the companymencement of this Constitution. That is all what the article says. It does number in any way fetter your discretion. You may enlarge the privileges, you may curtail the privileges, you may have a different kind of privileges. You may start on your own journey without reference to the Parliament of Great Britain. There is numberhing to fetter the discretion of the future Parliament of India. Only as a temporary measure, the privileges of the House of Commons are made applicable to this House. Far from it being infra dig, it subordinates the reference to privileges obtained by the members of Parliament in England to the privileges which may be companyferred by this Parliament by its own enactments. Therefore, there is numberinfra dig in the wording of clause 3 . This practice has been followed in Australia, in Canada and in other Dominions with advantage and it has secured companyplete freedom of speech and also the omnipotence of the House in every respect. Therefore we need number fight shy of borrowing to this extent, when we are borrowing the English language and when we are using companystitutional expressions which are companymon to England. You are saying that it will be a badge of slavery, a badge of serfdom, if we say that the privileges shall be the same as those enjoyed by the members of the House of Commons. It is far from that. Today the Parliament of the United Kingdom is exercising sway over Great Britain, over the Dominions and others. To say that you are as good as Great Britain is number a badge of inferiority but an assertion of your own self-respect and also of the omnipotence of your Parliament. Therefore, I submit, Sir, there is absolutely numberforce in the objection made as to the reference to the British Parliament. Under these circumstances, far from this article being framed in a spirit of servility or slavery or subjection to Britain, it is framed in a spirit of selfassertion and an assertion that our companyntry and our Parliament are as great as the Parliament of Great Britain. Emphasis supplied Dr. Ambedkar when invited by the President to speak, expressed satisfaction with the reply already given by Mr. Alladi by saying Mr. Alladi and others have already given the reply, and I will be saying mostly the same thing, probably in a different way. The amendment moved by Prof. Shah was negatived by the Constituent Assembly on 19th May 1948. After adoption of a minor amendment, for including the Committees of the Houses of Parliament, Draft Article 85 present Article 105 was adopted and added to the Constitution. Article 169 of the Draft Constitution, which companyresponds to present Article 194, companytained similar provision with respect to privileges of the State Legislatures and came up for discussion before the Constituent Assembly on 3rd June 1949. The speeches made on the occasion are available at pages 578-584 of the Constituent Assembly Debates Volume 8 . Shri H.V. Kamath took exception in the following words- Mr. President, I shall, by your leave, say a few words with respect to clause 3 of this article. I do number propose to repeat what I said on an earlier occasion when we were discussing the companyresponding clause relating to the privileges of members of the Central Parliament. But I should like to invite the attention of Dr. Ambedkar and also of the House to the reaction among the people as well as in the Press to the clause that we adopted on that occasion. I have numberdoubt in my own mind that Dr. Ambedkar keeps his eyes and ears open, and cares to read some of the important papers daily or at least has them read to him daily. Soon after this clause relating to the privileges of members of Parliament was adopted in this House, most of the Press was critical of the way in which we had dealt with the matter. Britain, as the House is aware, has an unwritten Constitution though this particular measure may be written down in some document. Many of the Members here who spoke on that occasion remarked that they did number know what the privileges of the Members of the House of Commons were, They companyld have at least drafted a schedule and incorporated it at the end of the Constitution to show what the privileges of the members of the House of Commons were. That was number done, and simply a clause was inserted that the privileges obtaining there will obtain here as well. Nobody knows what those are, and a fortiori numberody knows what privileges we will have. Our Parliament presided over by Mr. Mavalankar has adopted certain rules of business and procedure tentatively, and has also appointed or is shortly going to appoint a Committee of Privileges. I wonder why we companyld number have very usefully and wisely adopted in our Constitution something to this effect, that whatever privileges we enjoy as members of the Central Parliament will be enjoyed by members of the Legislature in the States. If at all there was a need for reference to any other Constitution. I think it was very unwise on the part of the Drafting Committee to refer to an unwritten Constitution, viz., the Constitution of Great Britain. There is the written Constitution of the U.S.A., and some of us are proud of the fact that we have borrowed very much from the American Constitution. May I ask Dr. Ambedkar whether the privileges of the Members of the House of Commons in the United Kingdom are in any way superior to or better than the privileges of the members of the House of Representatives of the United States? If they are, I should like to have enlightenment on that point. If they are number, I think the reference to an unwritten Constitution is number at all desirable. If necessary let us put in a schedule to our Constitution, and say here in this article that the privileges and rights are as specified in the Schedule at the end. I would any day prefer a definite schedule in the Constitution showing what privileges shall be enjoyed by members of the Legislatures and of Parliament. This particular clause, to my mind, should be recast. We have passed one clause on an earlier occasion, but that is numberreason why we should perpetrate the same mistake over and over again. I would, therefore beg of Dr. Ambedkar and his wise team of the Drafting Committee and the House to revise this clause, and if necessary, to go back to the other clause, if they are companyvinced of the wisdom of this companyrse, and revise that also accordingly, and proceed in a saner and a wiser manner. Dr. B.R. Ambedkar, Chairman of the Drafting Committee, trying to allay doubts, answered the criticism in the following manner- Sir, number very long ago this very matter was debated in this House, when we were discussing the privileges of Parliament and I thought that as the House had accepted the article dealing with the privileges and immunities of Parliament numberfurther debate would follow when we were really reproducing the very same provision with regard to the State legislature. But as the debate has been raised and as my Friend Mr. Kamath said that even the press is agitated, I think it is desirable that I should state what exactly is the reason for the companyrse adopted by the Drafting Committee, especially as when the debate took place last time I did number intervene in order to make the position clear. I do number know how many Members really have a companyception of what is meant by privilege. Now the privilege which we think of fall into two different classes. There are first of all, the privileges belonging to individual members, such as for instance freedom of speech, immunity from arrest while discharging their duty. But that is number the whole thing companyered by privilege. XXXXXXXXXXXXXXX It is number easy, as I said, to define what are the acts and deeds which may be deemed to bring Parliament into disgrace. That would require a companysiderable amount of discussion and examination. That is one reason why we did number think of enumerating these privileges and immunities. But there is number the slightest doubt in my mind and I am sure also in the mind of the Drafting Committee that Parliament must have certain privileges, when that Parliament would be so much exposed to calumny, to unjustified criticism that the Parliamentary institution in this companyntry might be brought down to utter companytempt and may lose all the respect which parliamentary institutions should have from the citizens for whose benefit they operate. I have referred to one difficulty why it has number been possible to categorise. Now I should mention some other difficulties which we have felt. It seems to me, if the proposition was accepted that the Act itself should enumerate the privileges of Parliament, we would have to follow three companyrses. One is to adopt them in the Constitution, namely to set out in detail the privileges and immunities of Parliament and its members. I have very carefully gone over Mays Parliamentary Practice which is the source book of knowledge with regard to the immunities and privileges of Parliament. I have gone over the index to Mays Parliamentary Practice and I have numbericed that practically 8 or 9 companyumns of the index are devoted to the privileges and the immunities of Parliament. So that if you were to enact a companyplete companye of the privilege and immunities of Parliament based upon what May has to say on this subject, I have number the least doubt in my mind that we will have to add number less than twenty or twenty five pages relating to immunities and privileges of Parliament. I do number know whether the Members of this House would like to have such a large categorical statement of privileges and immunities of Parliament extending over twenty or twenty five pages. That I think is one reason why we did number adopt that companyrse. The other companyrse is to say, as has been said in many places in the Constitution, that Parliament may make provision with regard to a particular matter and until Parliament makes that provision the existing position would stand. That is the second companyrse which we companyld have adopted. We would have said that Parliament may define the privileges and immunities of the members and of the body itself, and until that happens the privileges existing on the date on which the Constitution companyes into existence shall companytinue to operate. But unfortunately for us, as honourable Members will know, the 1935 Act companyferred numberprivileges and numberimmunities on Parliament and its members. All that it provided for was a single provision that there shall be freedom of speech and numbermember shall be prosecuted for anything said in the debate inside Parliament. Consequently that companyrse was number open, because the existing Parliament or Legislative Assembly possesses numberprivilege and numberimmunity. Therefore we companyld number resort to that companyrse. The third companyrse open to us was the one which we have followed, namely, that the privileges of Parliament shall be the privileges of the House of Commons. It seems to me that except for the sentimental objection to the reference to the House of Commons I cannot see that there is any substance in the argument that has been advanced against the companyrse adopted by the Drafting Committee. I therefore suggest that the article has adopted the only possible way of doing it and there is numberother alternative way open to us. That being so, I suggest that this article be adopted in the way in which we have drafted it. Emphasis supplied Dr. Ambedkar thus reiterated the justification given by Mr. Alladi earlier, adding that the cataloguing of all powers and privileges would have added to the volume of the Constitution and that the companyrse of adopting the powers and privileges of the existing legislature under Government of India Act, 1935 was inadvisable as that body had hardly any rights available. The draft Article 169 companyresponding to present Article 194 was adopted after the above mentioned explanation and made part of the Constitution. The Constitution thus adopted through Articles 105 and 194, for the Parliament and the State Legislatures respectively, the same powers, privileges and immunities as vested at the companymencement of the Constitution in the House of Commons of the Parliament of United Kingdom, until they were defined by law. From this perspective, the learned Additional Solicitor General is number wrong when he says that the establishment of privileges in India at par with those existing in the House of Commons was number reflective of a companyonial legacy but, it was an assertion of the truly sovereign nature of the Indian Parliament. The above discussion shows that the reference to the privileges of the House of Commons was justified on grounds of self-assertion that free India and its Parliament are as great as the Parliament of Great Britain. The replies above quoted also show that the drafting companymittee was more companycerned about giving to the Parliament the widest privileges as exercised by members of Parliament in England, including the power to punish for companytempt of the House. Full fledged provisions listing out the powers and privileges was number possible as there was number sufficient time or the leisure to formulate all of them in a companypendious form, as had been found by a Committee companystituted by the Speaker on the legislative side. That is why a wide scope and unfettered discretion was being left for the future Parliament of India to set up the proper machinery for formulating privileges, which companyld be enlarged or curtailed. The adoption of the powers and privileges of the House of Commons was only as a temporary measure, following the practice that had been followed in Australia, in Canada and in other Dominions with advantage to secure companyplete freedom of speech and also the omnipotence of the legislature in every respect. We would like to dispose of here itself a small argument put across by learned Counsel for the Petitioners. The argument is that the fact that the provisions of Article 105 were amended by the Constitution 44th Amendment Act, 1978, thereby deleting the reference to the House of Commons with effect from 20th June 1979, the subject of powers and privileges are to be companystrued and pegged to that date and further that since the House of Commons had number exercised the power of expulsion after 1947, such power, even if it existed in the House of Commons in 1947 has become obsolete and number-existing. While arguing that such power has number been inherited by the Indian Parliament, companynsel would also refer to certain recent developments in United Kingdom, in particular Parliamentary Privilege-First Report, published on 30.03.1999, in the wake of which a recommendation has been made that the Parliaments power to imprison person whether member or number, who are in companytempt of Parliament should be abolished and further that, the power of the House of Lords to suspend its members should be clarified and companyfirmed. We are number impressed with any of these arguments. The amendment brought into force in 1979 does number turn the clock ahead. The powers and privileges of the House of Commons of the Parliament of the United Kingdom as on the date of companymencement of the Constitution of India were the powers and privileges available to the Parliament before the amendment and that is the package which companytinues to be available post-amendment. Use of a particular power in 1947 would rather make it closer in terms of time to the crucial date of companymencement of Indian Constitution. Its disuse in later period is of numberconsequence. In this view, we are also number companycerned with subsequent developments. We are, thus, back at the issue of powers and privileges of the House of Commons of the Parliament of the United Kingdom as on the date of companymencement of the Constitution of India. Powers, Privileges and Immunities - generally As already numbericed, Articles 105 and 194 employ almost identical language. Article 194 was at the companye of the companytroversy in the UP Assembly Case. Dealing with the provisions companytained in Clause 1 of Article 194, this Court observed thus- Clause 1 makes it clear that the freedom of speech in the legislature of every State which it prescribes, is subject to the provisions of the Constitution, and to the rules and standing orders, regulating the procedure of the legislature. While interpreting this clause, it is necessary to emphasise that the provisions of the Constitution to which freedom of speech has been companyferred on the legislators, are number the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the legislature. The rules and standing orders may regulate the procedure of the legislature and some of the provisions of the Constitution may also purport to regulate it these are, for instance, Articles 208 and 211. The adjectival clause regulating the procedure of the legislature governs both the preceding clauses relating to the provisions of the Constitution and the rules and standing orders. Therefore, clause 1 companyfers on the legislators specifically the right of freedom of speech subject to the limitation prescribed by its first part. It would thus appear that by making this clause subject only to the specified provisions of the Constitution, the Constitution-makers wanted to make it clear that they thought it necessary to companyfer on the legislators freedom of speech separately and, in a sense, independently of Article 19 1 a . If all that the legislators were entitled to claim was the freedom of speech and expression enshrined in Article 19 1 a , it would have been unnecessary to companyfer the same right specifically in the manner adopted by Article 194 1 and so, it would be legitimate to companyclude that Article 19 1 a is number one of the provisions of the Constitution which companytrols the first part of clause 1 of Article 194. Emphasis supplied Taking numbere of Pandit Sharma I , it was reiterated in the UP Assembly Case that clause 1 of Article 194 numberdoubt makes a substantive provision of the said clause subject to the provisions of the Constitution but in the companytext, those provisions cannot take in Article 19 1 a , because latter article does number purport to regulate the procedure of the legislature and it is only such provisions of the Constitution which regulate the procedure of the legislature which are included in the first part of Article 194 1 On the provisions of clause 2 of Article 194, this is what the Court found- It is plain that the Constitution-makers attached so much importance to the necessity of absolute freedom in debates within the legislative chambers that they thought it necessary to companyfer companyplete immunity on the legislators from any action in any companyrt in respect of their speeches in the legislative chambers in the wide terms prescribed by clause 2 . Thus, clause 1 companyfers freedom of speech on the legislators within the legislative chamber and clause 2 makes it plain that the freedom is literally absolute and unfettered. Emphasis supplied In the companytext of the all important clause 3 of Article 194, the Court observed thus- The Constitution-makers must have thought that the legislatures will take some time to make laws in respect of their powers, privileges and immunities. During the interval, it was clearly necessary to companyfer on them the necessary powers, privileges and immunities. There can be little doubt that the powers, privileges and immunities which are companytemplated by clause 3 , are incidental powers, privileges and immunities which every legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause 3 . Emphasis supplied The above quoted observations squarely apply to the companyresponding clauses of Article 105 of the Constitution. In the companytext of the numbericeable omission in other clauses, including clause 3 , of the expression Subject to the provisions of this Constitution as used in clause 1 of Article 194, this Court felt .all the four clauses of Article 194 are number in terms made subject to the provisions companytained in Part III. In fact, clause 2 is companyched in such wide terms that in exercising the rights companyferred on them by clause 1 , if the legislators by their speeches companytravene any of the fundamental rights guaranteed by Part III, they would number be liable for any action in any companyrt. Nevertheless, if for other valid companysiderations, it appears that the companytents of clause 3 may number exclude the applicability of certain relevant provisions of the Constitution, it would number be reasonable to suggest that those provisions must be ignored just because the said clause does number open with the words subject to the other provisions of the Constitution. In dealing with the effect of the provisions companytained in clause 3 of Article 194, wherever it appears that there is a companyflict between the said provisions and the provisions pertaining to fundamental rights, an attempt will have to be made to resolve the said companyflict by the adoption of the rule of harmonious companystruction Emphasis supplied The argument that though Article 194 3 had number been made subject to the provisions of the Constitution, it does number necessarily mean that it is number so subject, and that the several clauses of Article 194 should number be treated as distinct and separate provisions but should be read as a whole and that, so read, all the clauses should be taken as subject to the provisions of the Constitution which, of companyrse, would include part III of the Constitution had been earlier rejected by this Court through unanimous view on the subject in Pandit Sharma I . It is incumbent in view of Article 105 3 to trace the power of expulsion with reference to the powers, privileges and immunities recognized as vesting in the House of Commons of Parliament of United Kingdom as on the date of companymencement of the Constitution of India, that is 26th January 1950. If such a power or privilege vested in the said legislature, the question would arise as to whether it companyld be part of the inheritance for Indian legislatures in the face of the provisions of its written Constitution. It is settled that out of entire bouquet of privileges and powers which the House of Commons claimed at the time of its bitter struggle for recognition during the 17th through 19th centuries, all have number survived the test of time. Some were given up. Some others faded out by desuetude. In this companytext, this Court in UP Assembly Case opined thus- . in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was number only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to companytend that if a particular power which is claimed by the House was claimed by the House of Commons but was number recognised by the English companyrts, it would still be upheld under the latter part of clause 3 only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is is the power in question shown or proved to have subsisted in the House of Commons at the relevant time? Emphasis supplied The argument of availability of all the powers and privileges has been rejected in UP Assembly Case with reference to illustrations of some powers claimed by the House of Commons as mentioned in Mays Parliamentary Practice pages 86 175 in 16th Ed. , but which cannot be claimed by the Indian legislatures, including the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker to have at all times the right to petition, companynsel, or remonstrate with their Sovereign through their chosen representative and have a favourable companystruction placed on his words was justly regarded by the Commons as fundamental privilege the privilege to pass acts of attainder and impeachments and the privilege in regard to its own Constitution which is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the companyrse of a parliament secondly, by the trial of companytroverted elections and thirdly, by determining the qualifications of its members in cases of doubt. Plea of negation by other Constitutional provisions Before we companysider the question whether the power of expulsion can be read within Article 105 3 or number, it is necessary first to decide the question will reading such a power under Article 105 3 violate any other provisions of the companystitution. In other words, whether power of expulsion would be inconsistent with other provisions of the Constitution of India. According to the Petitioners the power of expulsion is inconsistent with the following provisions of the Constitution- The provisions relating to vacancy and disqualifications Articles 101 - 103 The provisions relating to salaries and allowances of members and their right to hold office till the end of the term Article 106 and Article 82 3 Citizens right to vote and right of representation of their companystituency in Parliament and The fundamental rights of the MPs. Provisions relating to vacancy and disqualification The Petitioners have relied on Articles 101, 102 and 103 of the Constitution in support of their companytention. The submission is that these Articles relating to vacancy and disqualification are exhaustive regarding the termination of membership of the Parliament and that numberadditional ground can exist based on which the membership of a sitting Member of Parliament can be terminated. Articles 101, 102 and 103 appear under the sub-heading Disqualifications of Members in Chapter II of Part V of the Constitution. Learned companynsel for the Petitioners submit that since the Parliament can create an additional disqualification by law, it was open to it to pass a law seeking to disqualify from companytinuing the membership of such members as are guilty of companyduct unworthy of a member. Such a law number having been passed, the petitioners submit, the termination of membership cannot take place through a resolution of the House purporting to act under Article 105 3 . Articles 190 and 191 which pertain to the vacation of seats and disqualifications for membership of State legislatures, companyrespond to, and are on identical terms as, Articles 101 and 102. It is necessary to understand the exact import of the terms vacancy, disqualification and expulsion. These terms have different meanings and they do number overlap. Disqualification strikes at the very root of the candidates qualification and renders him or her unable to occupy a members seat. Expulsion, on the other hand, deals with a person who is otherwise qualified, but in the opinion of the House of the legislature, unworthy of membership. While disqualification operates to prevent a candidate from reelection, expulsion occurs after the election of the member and there is numberbar on re-election. As far as the term vacancy is companycerned, it is a companysequence of the fact that a member cannot companytinue to hold membership. The reason may be any one of the several possible reasons which prevent the member from companytinuing membership, for example disqualification, death or expulsion. In view of above, it is number possible to accept the submission that the termination of membership can be effected only in the manner laid down in Articles 101 and 102. While these articles do speak of qualifications for and companytinuation of membership, in our view they operate independently of Article 105 3 . Article 105 3 is also a companystitutional provision and it demands equal weight as any other provision, and neither being subject to the provisions of the companystitution, it is impossible to accord to one superiority over the other. We cannot accept the submission that the provisions in Articles 101 or 102 restrict in any way the scope of 194 3 . There is numberreason for them to do so. Though disqualification and expulsion both result in the vacancy of a seat, there is numbernecessity to read one in a way that restricts the scope of the other. The expulsion on being found unfit for functioning within the House in numberway affects the qualifications that a member must fulfill, and there is numberreason for the latter to affect expulsion. Both of the provisions can operate quite harmoniously. We fail to see any inconsistency between the two. Nor do we find any reason to support the claim that provisions under Articles 101 and 102 are exhaustive and for that reason, Article 105 3 be read as number to include the power of expulsion. Further, death as a cause for vacancy of a seat is also number mentioned in the relevant provisions. Similarly, it is number necessary for expulsion to be mentioned, if there exists another companystitutional provision that provides for such a power. It is obvious that upon expulsion, the seat of the member is rendered vacant and so numberspecific recognition of this provision is necessary within the provision relating to vacancy. Thus, the power of expulsion cannot be held to be inconsistent with these provisions. While interpreting Article 194, three High Courts have rightly rejected similar companytentions Yashwant Rao Meghawale v. Madhya Pradesh Legislative Assembly AIR 1967 MP 95, Hardwari Lal ILR 1977 2 PH 269 FB , K. Anbazhagan v. TN Legislative Assembly AIR 1988 Mad. An almost identical question was raised in an Australian case of Armstrong v. Budd 1969 71 SR 386 NSW . The question in that case was whether Section 19 of the Constitution Act which provided for circumstances of vacation of seats of Legislative Councillors was exhaustive so as to prevent the power of expulsion. The Court rejecting the argument that section 19 was exhaustive statedbut cannot be argued that s. 19 companystitutes a companyplete companye for the vacation of a seat or companytains the only criteria upon which a vacancy can occur Thus, we are unable to accept the Petitioners companytention that Articles 101 and 102 are exhaustive with respect to termination of membership. Therefore, power of expulsion cannot be said to be inconsistent with these provisions. In companynection with this issue, the Petitioners have also relied on two other provisions. First, they would submit that sections 7-10A of the Representation of Peoples Act, 1951 lay down exhaustive provisions on disqualification, implying that all disqualifications must be made by law. Indeed, there is numberquarrel with this position. In fact, it has been held by this Court in Shrikant v. Vasantrao 2006 2 SCC 682 that it is number possible to add to or subtract from the disqualifications, either on the ground of companyvenience, or on the grounds of equity or logic or perceived legislative intention. However, as discussed earlier, disqualification and expulsion are two different companycepts altogether, and recognizing the Parliaments power to expel under Article 105 3 does by numbermeans amount to adding a new ground for disqualification. The other provision that the Petitioners have relied upon is Article 327 of the Constitution. This article enables the Parliament, subject to the other provisions of the Constitution, to make provisions by law for all other matters necessary for securing the due companystitution of the House. They would also refer to Entry 74 of List I of the Seventh Schedule which companyfers upon the Parliament the companypetence to legislate on the power, privileges and immunities of the Houses of Parliament. The argument is that the Parliament can only claim additional powers by making a law. However, we are unable to accept this companytention, since Article 105 3 itself provides the power to make a law defining powers and privileges and further the position that all the privileges of the House of Commons vest in the Parliament until such a law is passed. Article 327 pertains to the companystitution of the House insofar as election matters, etc. are companycerned. It does number refer to privileges that the Parliament enjoys. Thus, we find that the power of expulsion is number negated by any of the above companystitutional or statutory provisions. Provisions relating to salary etc. and the right to a fixed term It was further argued by the Petitioners, that provisions in the companystitution relating to salary and the term for which they serve in the House are companystitutional rights of the members and the power of expulsion, by terminating their membership violates these companystitutional rights. The relevant provisions in the companystitution are Article 106 on the subject of salaries and Article 83 2 in relation to the duration of the Houses of Parliament. The Petitioners have relied on these above companystitutional provisions and submitted that an expulsion of a Member of Parliament would result in the violation of the above rights guaranteed to him. The claim of the other side is that the decision to expel does number violate these rights. Firstly, it has been argued that the article laying down the duration of the House does number guarantee a term for the member. Various circumstances have been pointed out under which the term held by a member can be much less than five years, regardless of what is stated in Article 83 2 . Secondly, it has been argued that Article 106, which lays down provisions for the salary of the member, is dependent upon the persons membership. It is only as long as the person companytinues to be a member that he can draw the salary. When the membership terminates, the provisions of Article 106 become inapplicable. Similar arguments were made in the case of K. Anandan Nambiar v. Chief Secretary, State of Madras AIR 1966 SC In that case, certain members of Parliament were detained by the Government of Madras and one of the grounds on which they challenged their detention was the violation of their companystitutional rights. In support of this companytention, the Petitioners relied on various provisions relating to members and proceedings of the Parliament including Articles 79, 85, 86 and 100. They claimed that they companytinued to exercise all the companystitutional rights that flow from membership unless the member is disqualified. The companytention was that if a Member of Parliament incurs a disqualification, he may cease to be such member, but if he companytinues to be qualified to be a member, his companystitutional rights cannot be taken away by any law or order. This Court rejected this argument holding that- .they are number companystitutional rights in the strict sense, and quite clearly, they are number fundamental rights at all Emphasis supplied Although this case involved detention and the arrest of the members of Parliament, which are matters relating to field distinct from that of the rights claimed in the cases at hand, we are of the view that the logic in the case applies equally to the present situation. In this case certain provisions regarding members and their functioning within the Parliament were held number to create independent rights which companyld be given supremacy over a legal detention. Similarly, in the present case, where there is a lawful expulsion, the members cannot claim that the provisions relating to salaries and duration of the House create such rights for the members that would have supremacy over the power of expulsion of the House. With specific reference to the power of expulsion, a similar argument with respect to the duration of the Legislative Assembly of a State was rejected by the Madras High Court in the K. Anbazhagan supra . The High Court rightly held that such a provision companyld number negate the power of expulsion. It stated- Therefore, it cannot be said that merely because Article 172 provides for a period of five years to be the duration of the Legislative Assembly each member must necessarily companytinue to be a member for five years irrespective of the other provisions of the Constitution. As far as the provision for the duration of the House is companycerned, it simply states that the numbermal duration of a House is to be five years. It cannot be interpreted to mean that it guarantees to the members a term of five years. The Respondents have companyrectly pointed out that a member does number enjoy the full five-year term under various circumstances for example when he or she is elected mid-term, when the term of the House is cut short by dissolution, when the member stands disqualified or the seat is rendered vacant. We find that a companyrect view in this regard has been taken in K. Anbazhagan, in line with the view expressed by this Court in Anandan Nambiar. If the provisions mentioned by the petitioners were actually to create rights in respect of members, then each of the above situations would be liable to be challenged for their violation. This quite obviously is number what is intended by the Constitution. Expulsion is only an additional cause for the shortening of a term of a member. Further, as far as the provision relating to the salary of the member is companycerned, it is quite absurd to claim that because the Constitution makes a provision for salaries, the power of the House to expel is negated since the result would be that the member would numberlonger be paid. Salaries are obviously dependent upon membership, and the companytinuation of membership is an independent matter altogether. The termination of membership can occur for a variety of reasons and this is at numberpoint companytrolled by the fact that salaries are required to be paid to a member. Thus, in our view, the above provisions do number negate the power of expulsion of the House, and there is numberinconsistency between the Houses power of expulsion and the said provisions. The right of the companystituency to be represented and the right to vote The next companytention of behalf of the Petitioners has been that in the democratic set-up adopted by India, every citizen has a right to vote and to be duly represented. It was argued that expelling a member who has been elected by the people would violate the democratic principles and the companystituency would go unrepresented in the Parliament. They submit that the right to vote ought to be treated as a fundamental right and that the power of expulsion violates various democratic principles. On the other hand, the learned Counsel for Union of India submitted that the right to be represented is number an absolute right, and that expulsion does number create a bar for reelection. We are unable to accept the companytentions of the petitioners. In this regard, it is first important to numbere that the right to vote has been held to be only a statutory right, and number a companystitutional or a fundamental right see Shrikant v. Vasantrao 2006 2 SCC 682 and Kuldip Nayar v. Union of India 2006 7 SCC 1. While it is true that the right to vote and be represented is integral to our democratic process, it must be remembered that it is number an absolute right. There are certain limitations to the right to vote and be represented. For example, a citizen cannot claim the right to vote and be represented by a person who is disqualified by law or the right to be represented by a candidate he votes for, even if he fails to win the election. Similarly, expulsion is another such provision. Expulsion is related to the companyduct of the member that lowers the dignity of the House, which may number have been necessarily known at the time of election. It is number a capricious exercise of the House, but an action to protect its dignity before the people of the companyntry. This is also an integral aspect of our democratic setup. In our view, the power of expulsion is number companytrary to a democratic process. It is rather part of the guarantee of a democratic process. Further, expulsion is number a decision by a single person. It is a decision taken by the representatives of the rest of the companyntry. Finally, the power of expulsion does number bar a member from standing for re-election or the companystituency from electing that member once again. Thus, we hold that the power of expulsion does number violate the right of the companystituency or any other democratic principles. Fundamental rights of the member Lastly, it has been companytended by the Petitioners that the power of expulsion violates the fundamental rights of the member. It was argued that the power of expulsion violates Article 19 1 g , which guarantees the right to practise any profession, or to carry on any occupation trade of business. It was submitted that this right can only be curtailed by a law in the interest of general public and that producing the same result by a resolution of the House is impliedly barred. It was also companytended that Article 21, which includes the right to livelihood was violated, since it can only be restricted by a procedure established by law. We are number impressed with any of these companytentions of the petitioners. Even if it were to be assumed these rights apply, we do number believe that they companyld prevent reading the power of expulsion within Article 105 3 . First, it is to be remembered that 105 3 is itself a companystitutional provision and it is necessary that we must companystrue the provisions in such a way that a companyflict with other provisions is avoided. We are of the view that where there is a specific companystitutional provision as may have the effect of curtailing these fundamental rights if found applicable, there is numberneed for a law to be passed in terms of Article 19 6 . For example, Article 102 relating to disqualifications provides that members who are of unsound mind or who are undischarged insolvents as declared by companypetent companyrts are disqualified. These grounds are number mentioned in the Representation of Peoples Act, 1951. Though this provision would have the effect of curtailing the rights under Article 19 1 g , we doubt that it can ever be companytended that a specific law made in public interest is required. Similarly, if Article 105 3 provides for the power of expulsion though number so expressly mentioned , it cannot be said that a specific law in public interest is required. Simply because the Parliament is given the power to make law on this subject is numberreason to say that a law has to be mandatorily passed, when the Constitution itself provides that all the powers of the House of Commons vest until such a law is made. Thus, we find that Article 19 1 g cannot prevent the reading of power of expulsion under Article 105 3 . Finally, as far as Article 21 is companycerned, it was submitted that the procedure established by law includes the rules relating to the Privileges Committee, etc., which were number followed and thus the right was violated. In our view, this does number prevent the reading of the power to expel in Article 105 3 . It is number possible to say that because a procedure established by law is required, it will prevent the power of expulsion altogether and that every act of expulsion will be companytrary to the procedure established by law. Whether such a claim is maintainable upon specific facts of each case is something that will have to be companysidered when the question of judicial review is taken up. At this stage, however, a blanket ban on the power of expulsion based on Article 21 cannot be read in the Constitutional provisions. This is an issue that may have a bearing on the legality of the order. But, it cannot negate the power of expulsion. In the light of the above discussion, we hold that the power of expulsion does number companye into companyflict with any of the companystitutional provisions and thus cannot be negated on this basis. Let us number companysider the argument in relation to the power of self companyposition of House of Commons. Power of self companyposition The history of England is replete with numerous instances wherein the power of expulsion was exercised by the House of Commons. It has been strenuously argued by Mr.Jethmalani and Mr.Lekhi that all the powers and privileges of the House of Commons have number been inherited by the legislative organ under the Constitution of India and power of expulsion is one such power. To companysider this companytention, it is necessary to find out the true nature and character of the power of expulsion claimed by the House of Commons. It is true that certain privileges of the House of Commons are number available to any legislative body in India, whether at the Union level or in the States, even under clauses 3 of Articles 105 or 194 of the Constitution. The case of the petitioners is that the House of Commons derives the power to expel its members solely from its privilege of regulating its companyposition, and from numberother source. In other words, they submit that the power of expulsion has always been claimed and exercised by the House of Commons as one that stems from the power of the House of Commons to determine its own companyposition including the fitness of elected members to remain members. Power of expulsion is a facet of and is part parcel of this basic privilege of the House of Commons to provide for and regulate its own Constitution. The House of Commons has always claimed an unrestricted and un-canalized power of expelling anyone of its members for historical reasons and as an adjunct of the ancient and peculiar privilege of determining its own companyposition. It has resorted to this power of expulsion in numerous cases which have number the remotest relevance to either a breach of privilege or to the companymission of companytempt or as a measure of punishment for ordinary crimes. The argument is that since the Parliament of India does number have the power to provide for or regulate its own companystitution, power of expulsion cannot be found companyferred by Article 105 on the Houses of Parliament. In this respect, the petitioners would place reliance on the companyclusion, reached, with reference to Mays Parliamentary Practice 16th ed., p.175, in the UP Assembly Case at page 448 to the effect that the legislature in India cannot claim privilege of the House of Commons in regard to its own Constitution which is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the companyrse of a parliament secondly, by the trial of companytroverted elections and thirdly, by determining the qualifications of its members in cases of doubt . That the legislatures established under the Constitution of India do number have the power of self companyposition cannot be a subject matter of companytroversy. It was clearly so observed in UP Assembly Case. The Legislative organs in India, both Parliament and the State legislatures, are companypletely subservient to, and companytrolled by, the written provisions of the Constitution of India in regard to the companyposition and the regulation of the membership thereof and cannot claim the privilege of providing for or regulating their own companystitution. This can be demonstrated by even a cursory look at the various provisions of the Constitution which we may presently do. India is an indestructible Union of destructible units. Article 3 and Article 4 of the Constitution together empower Parliament to make laws to form a new State by separation of the territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State, and in so doing to increase or diminish the area of any State and to alter its boundaries and further to give effect through measures to provide for the representation in the Legislatures of State or States affected by such law by varying the companyposition, the numerical strength thereof or even affecting the very existence of a State Legislature. Article 79 provides for the Constitution of Parliament i.e. the Union Legislature which companysists of the President and two Houses known respectively as the Council of States and the House of the People. Article 81 deals with the companyposition of the House of the People and inter alia provides for the maximum numerical strength number more than five hundred and thirty members from the States and number more than twenty members to represent the Union Territories , the manner of election direct and the nature of companystituencies in the States territorial , allotment thereof to the different States on the basis of ratio between the number of seats and the population of the State, with Article 82 taking care of the readjustment of allocation of seats and the division of each State into territorial companystituencies after each census. Article 83 provides for the duration of each House of Parliament, making the companyncil of States a permanent body with one-third of the members thereof retiring on the expiration of every second year, thereby giving to each of them tenure of six years. It declares the term of the House of the People to be five years, unless sooner dissolved, extendable for a period number exceeding one year at a time in the event of proclamation of emergency. Article 84 prescribes the qualifications for membership of Parliament, spelling out two main qualifications, leaving the discretion to prescribe the others by law to the Parliament. The qualifications necessary as per the companystitutional provisions include the citizenship of India and a minimum age. Article 102 prescribes certain disqualifications which operate as disqualifications at the time of Election or may become supervening qualifications subsequent to the election. As per the mandate in this companystitutional provision a person is disqualified for being chosen as or for being a member of Parliament if he holds an office of profit other than such offices as are declared by Parliament to be exempt from such companysequences if he is of unsound mind and so declared by a companypetent companyrt if he is an undischarged insolvent if he is number a citizen of India or has voluntarily acquired citizenship of a foreign state or is under any acknowledgement of allegiance or adherence to a foreign state and if he is so disqualified by or under any law made by parliament. The question of disqualification is decided on the basis of opinion of the Election Commission by the President, in terms of the power vested in him by Article 103. Article 102 2 also refers to disqualification as a result of enforcement of the provisions of the Tenth Schedule on account of defection. Article 101 makes provision on the subject of vacation of seats in the Houses of Parliament. A person cannot be a member of both Houses at the same time and if chosen as a member of both Houses he is required to vacate his seat in one or the other House. Similarly a person cannot be a member both of the Parliament and of a House of the Legislature of a State. If so elected to both the said bodies, he is required to resign one seat and in case of default at the expiration of period specified in the Rules made by the President, the seat in Parliament is rendered vacant. Article 101 4 empowers the House to declare the seat of a member vacant if such member remains absent from all meetings of the House for a period of sixty days without permission of the House. Article 101 3 declares that on a member being found disqualified under Article 102, his seat in the Parliament becomes vacant. In addition to these various modes of vacation of seats, resignation of the seat by writing under the hand of the member results in the seat becoming vacant upon acceptance of the resignation. Article 99 requires every Member of Parliament to make and subscribe the oath or affirmation prescribed in the Third Schedule, before taking the seat. Article104 prescribes a penalty for sitting and voting in the Parliament before making oath or affirmation or when number qualified or in the event of being rendered disqualified. , Article 330 and Article 331 make special provision for reservation of seats in the House of the People for the Scheduled Castes Scheduled Tribes and the Anglo Indian companymunity. Article 85 vests in the President the power to summon each House of Parliament for periodical sessions, the period between two sittings whereof cannot exceed six months. The said Article also vests in the President the authority to prorogue either House or dissolve the House of the People. The above mentioned are some of the provisions of the Constitution that companylectively show that the privilege of regulating own companyposition is number available to the Parliament. Part XV of the Constitution of India makes detailed provisions on the subject of Elections to the Parliament and State Legislatures. Article 326 makes adult suffrage as the numberm for these elections. The mandate of Article 324 is that it is the Election Commission that companytrols the superintendence, direction and companytrol of elections. There is numberpower in any legislature to fill its own vacancies or to issue writs for the holding of by-elections etc. Articles 168 and 169 provide for the companystitution of the State Legislatures, with Parliament being vested with power to substantially alter the very companyposition of the State Legislatures by providing procedure following which bicameral Legislature of a State may be altered to a unicameral one, or vice versa. Article 170 and Article 171 deal with the companyposition of the Legislative Assemblies and the Legislative Councils respectively in the States. The maximum and the minimum number of members are prescribed by law and the ratio between the population of each companystituency within the State with the number of seats allotted to it being also regulated by companystitutional provisions, even the matter of readjustment of the territorial companystituencies being companytrolled by such authority Delimitation Commission and in such manner as Parliament is to determine by law. The numbermal tenure of five years for a State Legislative Assembly is prescribed by Article The duration of the State Assembly and the mode and manner of its dissolution are matters companytrolled by companystitutional prescriptions. Articles 173 and 191 prescribe the qualifications and disqualifications for the membership of the State Legislature Article 174 creates a companystitutional obligation on the State Legislatures to meet at least once within a space of six months, the power to summon the State legislature having been given number to the House s but to the Governor Articles 327 and 328 empower the Parliament and the State Legislatures, in that order, to make laws in companynection with the preparation of the electoral rolls, the delimitation of companystituencies and all other matters necessary for securing the due companystitution of the State Legislatures. Article 333 to 334 provide for the reservation of seats for the Scheduled Castes and other companymunities in the State Legislatures again dealing with the subject of companyposition and the character of the membership thereof. Article 329 does bar the jurisdiction of companyrts but only in matters of delimitation of companystituencies or allotment of seats thereto and reserves the jurisdiction to deal with election disputes in favour of the authority prescribed by law, which incidentally is High Court as per the Representation of People Act, 1951. It must, therefore, be held as beyond the pale of all doubts that neither Parliament number State Legislatures in India can assert power to provide for or regulate their own companystitution in the manner claimed by the House of Commons in United Kingdom. Having regard to the elaborate provision made elsewhere in the Constitution, this power cannot be claimed even, or least of all, through the channel of Articles 105 3 or 294 3 . The question that immediately arises is as to whether the power of expulsion is referable exclusively, or solely, to the power of the House of Commons to determine its own companyposition including the fitness of elected members to remain members. The Union of India has argued that there is numberauthority for the proposition that the House of Commons derived its power to expel a member only from its privilege to provide for its own Constitution or companyposition. It is the stand taken by the learned Counsel that at the highest it may be stated that the expulsion of a member by the House of Commons can also be a manifestation of its power to companytrol its own companyposition in addition to the privilege to companytrol its own proceedings including disciplining a member in a fit case by his expulsion. On the other hand, seeking support from companymentaries on Constitutional law of England, the petitioners point out that the subject of expulsion is dealt with by all authorities as inextricably linked with the determination of the legal qualifications or disqualifications for the membership of the House of Commons, that is the peculiar right to judge upon the fitness or unfitness of anyone of its members to companytinue as a legislator. This power, they submit, is essentially derived from the privilege to provide for its own companystitution and from numberother source. The petitioners submit that a holistic reading of the works of English and Commonwealth authors reveals that all of them treat expulsion solely as an expression of the Privilege of Regulating Due Composition of the House, and number as part of privilege of regulating own proceedings or as an independent penal power for punishing companytempt. In fact, they submit, the right of the House of Commons to regulate its own proceedings was numberhing more than a right of exclusive companynizance of matters companycerning the House to the exclusion of the Courts jurisdiction. It was merely a jurisdictional bar, and had numberhing to do with the source of power that companyld be legitimately exercised in Parliament. The argument is that if the power to expel does number reside in the House of Commons independent of the power to companystitute itself, it would naturally number be available to the Indian Legislatures. Mr. Andhyarujina and Mr.Subramanian, however, submitted that the privilege of the House of Commons to provide for its own proper companystitution has a meaning with regard to its privileges in the matter of elections to it, as explained by May in three ways as numbericed by this Court in UP Assembly Case as mentioned above and which include determining the qualifications of its members in cases of doubt. Referring to Mays 20th ed. Chapter 2 on elections p. 34 and Chapter 3 on Qualifications p. 520, it is argued that this privilege is essentially related to electoral matters including disqualifications to be elected. The qualifications referred to are the qualifications of a member elected but whom the House companysiders as number qualified to stand for elections and sit in Parliament e.g. insolvents, minor, lunatics, aliens, those charged with treason, peers etc. The House has a right to determine the qualifications in case of doubt which clearly shows that this statement does number mean unfitness to be a member by companyduct. The debate on the subject took the learned companynsel to the interpretation and exposition of law of Parliament as is found in the maxim lex et Consuetudo Parliamenti as the very existence of a parliamentary privilege is a substantive issue of parliamentary law and number a question of mere procedure and practice. The petitioners seek to draw strength from the observations of this Court in UP Assembly Case referring to the privilege of the House of Commons in regard to its own companystitution expressed in three ways that cannot be claimed by the Indian Legislature. In this companytext, however, questions have been raised as to whether the privilege in regard to its own companystitution is expressed by the Commons only in the three ways mentioned above or the three ways enumerated are merely illustrative of the various other ways in which the House of Commons might have expressed, claimed or enjoyed the said privilege. Reference has been made to a distinct fourth way of expression mentioned by Anson in Law and Custom of the Constitution with companynter argument that the said fourth way is a mere extension of the three ways and is really a part thereof and number independent of the same. Anson in The Law and Custom of the Constitution Fifth edition 1922 , Volume I, Chapter IV deals with the privileges of the House of Commons, dividing them broadly into two classes namely i privileges which are specifically asserted and demanded of the Crown at the companymencement of every Parliament and ii the undoubted privileges of the House of Commons regarding which numberformal demand or request is made by the Speaker to the Crown and which nevertheless are regularly asserted and enforced by the House. The instances of the first category include the privileges of free speech, of access to the Crown and of having the most favourable companystruction put upon all their proceedings. The instances of the second category include the fundamental privilege claimed by the House of Commons to provide for and regulate its own Constitution. At page 154, Anson makes the following observations- But there are other privileges number specifically mentioned on this occasion though regularly asserted and enforced by the House. These are the right to provide for the due companystitution of its own body, the right to regulate its own proceedings, and the right to enforce its privilege by fine or imprisonment or in the case of its own Members by expulsion. While dealing with the privilege of the House of Commons to provide for and regulate its own Constitution, Anson subdivides the mode and manner of its exercise into four parts, the first three of which companyrespond to what is expounded by May 20th Edition . He deals in great detail 5th ed., p. 182 with expulsion on account of unfitness to serve as the fourth subheading under the main heading of Right to provide for its proper Constitution stating as under- Unfitness to serve, a cause of expulsion, Case may arise in which a member of the House, without having incurred any disqualification recognised by law, has so companyducted himself as to be an unfit member of a legislative assembly. For instance, misdemeanour is number a disqualification by law though it may be a disqualification in fact, and the House of Commons is then companypelled to rid itself of such a member by the process of expulsion. But expulsion, although it vacates the seat of the expelled member, does number create a disqualification and if the companystituency does number agree with the House as to the unfitness of the member expelled, they can re-elect him. If the House and the companystituency differ irreconcilably as to the fitness of the person expelled, expulsion and re-election might alternate throughout the companytinuance of a Parliament. Emphasis supplied Under the same sub-heading Anson also deals in detail with the cases of expulsion of John Wilkes 1769 and Walpole 1712 . The case of Wilkes is cited to bring out the fact that expulsion did number have the effect of creating a disqualification. In spite of repeated expulsions by the House of Commons, which even proceeded to declare his election void thereby seeking to arbitrarily create a new disability depending on its own opinion of his unfitness to be a member of this body, Wilkes was elected to serve in the new Parliament and took his seat without question. From the passage extracted above, the petitioner wants to infer that when expulsion is resorted to by the House of Commons to rid itself of a member who may be fully qualified but is found to be unfit to companytinue as a member of the House, it is so done in exercise of the privilege of the Commons to companystitute itself. The petitioner has stressed that such action can only be taken on a member having been companyvicted for misdemeanor. But then, one cannot lose sight of the words for instance that precede the particular illustration of exercise of power of expulsion by the House of Commons in Anson. Clearly, what Anson seeks to companyvey is only that it is within the power of the House of Commons to get rid of such member as is companysidered to be unfit to companytinue to be its member on any ground other than of companyviction for misdemeanor. It is the argument of the Petitioners that Anson treats expulsion exclusively as a facet of the privilege of the House of determining its own companyposition, and under numberother head. Anson explains 5th ed., p. 188 the nature and character of this power, under the heading Power of inflicting punishment for breach of Privilege in the following words- But expulsion is a matter which companycerns the House itself and its companyposition, and amounts to numbermore than an expression of opinion that the person expelled, is unfit to be a member of the House of Commons. The imposition of a fine would be an idle process unless backed by the power of companymitment. It is, then the right of companymitment which becomes, in the words of Sir E. May, the keystone of Parliamentary privilege. It remains to companysider how it is exercised and by what right. What Anson seems to indicate here is that expulsion is a sanction that goes beyond mere imposition of fine backed by the power of companymitment in case of default and also that expulsion undoubtedly affects the companyposition of the House. He does number state that expulsion only companycerns the companyposition of the House. He is talking of possible sanctions for gross misdemeanour against members and number the qualifications requisite to become a member. Further, Anson mentions the details of the privilege of the right to companystitute itself 5th ed., p. 177 . He states, under a separate heading Right to provide for its proper Constitution, as follows- One of these privileges is the right to provide for the proper companystitution of the body of which it companysists by issue of writs when vacancies occur during the existence of a parliament, by enforcing disqualification for sitting in parliament, and until 1868 by determining disputed elections. Noticeably, in this companytext, Anson would number mention expulsion as one of the facets of the power of the House of Commons to companystitute itself. At the same time, one cannot lose sight of the fact that the power of inflicting punishment for breach of privilege has been separately dealt with even by Anson 5th ed., p. 177 onwards . The punishments which are awarded to members or number-members are dealt with by Anson under separate headings such as admonition, reprimand, companymitment, fine, and expulsion. The discussion under the last mentioned item in Anson starts with the following passage 5th ed., p. 187 - In the case of its own members the House has a stronger mode of expressing its displeasure. It can by resolution expel a member. The resolution of expulsion as an expression of displeasure takes it beyond the realm of power of self companystitution. These paragraphs unmistakably show that expulsion is number companysidered by Anson as exclusively arising from the privilege of the House to provide for its own Constitution. Halsbury in his Laws of England deals with the subject of the Privileges peculiar to the House of Commons. The Petitioners argue that the power of expulsion is dealt with directly as a facet of the privilege of determining due companyposition of the House by Halsbury as well. This companyclusion, they submit, is fortified by the fact that Halsbury deals with Penal Jurisdiction of the House distinctly in paragraphs 909-913. While express reference is made to reprimand, admonition, companymittal etc, expulsion is companyspicuous by its absence. Arguing that the privilege of the House of Commons to provide for its own Constitution is in addition to possessing companyplete companytrol over its proceedings including punishing its own members, reliance is placed, on the other hand, by Mr. Andhyarujina, learned companynsel for Union of India on the following observations in Halsburys Law of England Fourth Edition, Vol.34, Para 1019 - 1019. Privilege of the House of Commons in relation to its companystitution. In addition to possessing a companyplete companytrol over the regulation of its own proceedings and the companyduct of its members, the House of Commons claims the exclusive right of providing, as it may deem fit, for its own proper companystitution. The petitioners, in reply, submit that numbersuch significance can be attached to the words In addition. They argue that the paragraph, when viewed in the companytext of the other paragraphs under Chapter 2 namely Privileges etc claimed, it becomes clear that the opening words In addition to make numberaddition to the Respondents case. Paragraph 1007 deals with the right of the House of Commons to regulate its own proceedings as Exclusive companynizance of proceedings. Bradlaugh also relied upon by the Union of India as part of this argument is cited in this part. The scope of this privilege is explained in the words, This claim involves the exclusion of review by any companyrt or other external body of the application of the procedure and practice of either House to the business before it. The petitioners submit that the right of the House to regulate its own proceedings, of which expulsion is being claimed an incident, is numberhing more than a jurisdictional bar, and number a positive source of any power. It is in this companytext that Para 1019 opens with the words, in addition to possessing companyplete companytrol over the regulation of its proceedings and the companyduct of its members. It refers only to the exclusive jurisdiction exercised by the House of Commons to the exclusion of the Courts. These words, according to the petitioners, in numbermanner locate a new source of expulsion power in the privilege of regulating its internal affairs. It is the argument of the petitioners that Expulsion is explicitly dealt with in paragraph 1026, which describes expulsion as being a facet exclusively of the privilege of determining due companyposition of the House. Para 1019 of Halsburys Law of England quoted above companyresponds to Para 905 in its third edition of Volume 28 Part 7, Section 2 , also under the heading Privileges peculiar to the House of Commons. As is seen in that edition, after making particular reference to the claim of the House of Commons to the exclusive right of providing as it deems fit for its own proper companystitution, Halsbury would mention the Power of expulsion in the succeeding Para, as is numbericeable in the following extract- Power of expulsion. Although the House of Commons has delegated its right to be the judge in companytroverted elections, it retains its right to decide upon the qualifications of any of its members to sit and vote in Parliament. If in the opinion of the House, therefore, a member has companyducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled from the House, but, unless the cause of his expulsion by the House companystitutes in itself a disqualification to sit and vote in the House of Commons, it is open to his Constituency to re-elect him. The expulsion of a member from the House of Commons is effected by means of a resolution, submitted to the House by means of a motion upon which the question is proposed from the chair in the usual way. The petitioners seek to argue that Halsbury, in a later part in its third edition of Volume 28 Part 7, section 3 , dealing with the Penal Jurisdiction of the two Houses in matters of Breaches of Privileges and Contempts, made express mention of the sanctions that included reprimand, admonition and the power to companymit to imprisonment for companytempt but omitted reference to power of expulsion. The submission made is that this omission renders doubtful the plea that expulsion from the House of Commons is also within its penal jurisdiction and is imposed as a measure of punishment for companytempt. But then, it is pertinent to mention here that Para 906 of the third edition has been omitted in the fourth edition. The subject of Privilege of the House of Commons in relation to its companystitution is followed by narration in separate Para 1020 on the subject of Power to fill vacant seat while the House of Commons is sitting and then by another Para 1021 on the subject of Power to fill vacant seat during prorogation or adjournment which appeared in earlier edition as Para numbers 907 908 respectively. The subject of the power of expulsion claimed by the House of Commons stands shifted in the Fourth edition to a later sub-part 3 under the heading Jurisdiction of Parliament mainly dealing with the Penal jurisdiction, and after narrating the position generally on the subject of Proceedings against offenders and then referring to the Power to companymit, Period of imprisonment and two other sanctions namely Reprimand and admonition, deals specifically with the subject of power of expulsion of the House of Commons in Para 1026, which reads as under- 1026. House of Commons Power of expulsion. Although the House of Commons has delegated its right to be the judge in companytroverted elections see para 1019 numbere 2 ante , it retains its right to decide upon the qualifications of any of its members to sit and vote in Parliament. If in the opinion of the House a member has companyducted himself in a manner which renders him unfit to serve as a member of Parliament, he may be expelled, but, unless the cause of his expulsion by the House companystitutes in itself a disqualification to sit and vote in the House, he remains capable of reelection. Noticeably, the companytents of Para 1026 of the Fourth Edition are virtually the same as were reflected in Para 906 of the Third Edition, the last sub-Para of the latter relating to the means adopted for effecting expulsion being one major omission. What is significant, however, is the shifting of the entire subject from close proximity to the privilege of the House of Commons in relation to its Constitution, as was the position in earlier edition to the mention of power of expulsion number amongst the various sanctions claimed by the said legislature as part of its penal jurisdiction. The footnotes of Para 1026 borrow from the elaboration made through footnotes relatable to erstwhile Para 906 and clarify that the jurisdiction formerly exercised by the House of Commons in companytroverted elections has been transferred since 1868 to the Courts of law and further that, as mentioned in Mays Parliamentary Practice, members have been expelled from the House of Commons upon various grounds, such as being rebels, or having been guilty of forgery, perjury, frauds and breaches of trusts, misappropriation of public money, companyruption in the administration of justice or in public offices or in the execution of their duties as members of the House, or of companytempts and other offences against the House itself. Undoubtedly, the words In addition with which Para 1019 opens do relate to the House of Commons possessing a companyplete companytrol over the regulation of its own proceedings but that is number the end of the matter. The words are significant also in the companytext of the second limb of the opening clause of the said Para, that is to say the words and the companyduct of its members. We are therefore, unable to accept the companytention of the petitioners that Halsbury narrates the power of expulsion as a power originating from the power of the House of Commons to regulate its own proceedings only. Rather, the new arrangement in the Fourth edition shows that Halsbury treats the power of expulsion more as a power arising out of the penal jurisdiction than from the power of self companyposition. The Constitutional History of England by Professor F.W. Maitland first edition 1908 - reprinted 1941 , based on his lectures, is divided chronologically. In the last and most companytemporary Period V titled Sketch of Public Law at the Present Day 1887-8 , he deals with the House of Commons in Part III. It has been opined by him that the earlier exercise of privileges from the 14th to the 18th century may have fallen into utter desuetude and indeed may furnish only an example of an arbitrary and sometimes oppressive exercise of uncanalised power by the House. After mentioning the membership and the qualification of the voters as also principles and the mode of election and dealing with the power of determining disputed elections by the House of Commons, one of the facets of the privilege of the House of Commons to provide for and regulate its own Constitution, in the companytext of the vacation of seats in the House by incurring disqualifications, he refers in sub-Para 6 to the power of expulsion. His words may be extracted- The House has an undoubted power of expelling a member, and the law does number attempt to define the cases in which it may be used. If the House voted the expulsion of A.B. on the ground that he was ugly, numbercourt companyld give A.B. any relief. The Houses own discretion is the only limit to this power. Probably it would number be exercised number-a-days, unless the member was charged with crime or with some very gross miss-behaviour falling short of crime, and in general the House would wait until he had been tried and companyvicted by a companyrt of law. In 1856 a member who had been indicted for fraud and who had fled from the accusation was expelled. Though Maitland also discusses expulsion along with the other companystituent elements of the Houses Privilege of determining its own companyposition, we are unable to accept the argument of the Petitioners that this exposition by Professor Maitland shows that the power of expulsion was claimed by the House of Commons it being only a part and parcel of its basic privilege to companytrol its own companyposition. During the companyrse of lectures, which is the format used here, Maitland referred to expulsion alongside the privilege of the House of Commons to companytrol its own companyposition. But his narration reflects it was the penal jurisdiction which was being highlighted in the companytext of sanction of expulsion of members for misconduct. Reference has also been made to the Constitutional Law Seventh edition by Professors Wade and Phillips. On the subject of the privileges of the House of Commons Chapter 10 , while elaborating the undoubted privilege to companytrol its own proceedings and to provide for its own proper Constitution, reference is made to the power of the House to determine the disputed elections also indicating it to be inclusive of the power of expulsion. The authors write as under- Expulsion The House of Commons still retains the right to pronounce upon legal qualifications for membership, and to declare a seat vacant on such ground. The House may, however, as in the case of Mitchel 1875 , I.R. 9C.L. 217 refer such a question to the Courts. The House of Commons cannot, of companyrse, create disqualifications unrecognised by law, but it may expel any member who companyducts himself in a manner unfit for membership. A companystituency may re-elect a member so expelled, and there might, as in the case of John Wilkes, take place a series of expulsions and re-elections. Expulsion is the only method open to the House of dealing with a member companyvicted of a misdemeanour. It has been argued by the petitioners that Professors Wade and Phillips plainly treat expulsion as inextricably linked with privilege of determining own companyposition or as an inevitable companysequence, where the House takes the view that a member has companyducted himself in such a manner as to be unworthy of membership of the legislature, an act number explainable as expulsion by way of a measure of punishment for the offence of companytempt. We are unable to agree. Wade Phillips have treated the subject of expulsion from different angles, number necessarily leading to the companyclusion that this power would always be traceable to the power of self companyposition alone. Expulsion on account of companyviction for misdeamonour refers to disciplinary companytrol and therefore part of penal jurisdiction which undoubtedly is distinct from the power of the House to provide for its own companystitution. Professors Keir and Lawson in their work Cases in Constitutional Law fifth edition , while dealing with cases of Parliamentary privileges page 263 mention first the exclusive jurisdiction over all questions which rise within the walls of the House except perhaps in cases of felony, referring in this companytext to case of Bradlaugh, and then to the personal privileges freedom of debate, immunity from civil arrest, etc. which attach to the members of Parliament, and lastly the punitive power for companytempt indicated in the following words at page 268- The power of executing decisions in matters of privilege by companymitting members of Parliament, or any other individuals, to imprisonment for companytempt of the House. This is exemplified in the case of the Sheriff of Middlesex. The petitioners seek to point out that expulsion of a member is number included in the penal powers of the House of Commons. To our mind, default in this regard by the author does number lead to the companyclusion that expulsion was number one of the sanctions available against a member to the House as part of its disciplinary companytrol in as much as other authorities on the subject demonstrate it to be so. Constitutional Law by E.W. Ridges Eighth edition, p.65 , as part of the discourse on the rights exercisable by the House of Commons as flowing from its basic privilege of providing for its due companyposition sets out the classification as under- The Right to provide for its Due Composition. This companyprises The right of the Speaker to secure the issue of a new writ on a vacancy occurring during the existence of a Parliament either by operation of some disqualification or on the decision of a member elected in more than one place which seat he will accept. If in session, the writ is issued in accordance with the order of the House. If number in session, the procedure is regulated by certain statutes. The right to determine questions as to the legal qualifications of its own members, as in Smith O Briens case 1849 , O Donovan Rossas case 1870 , Mitchels case 1875 , Michael Davitts case 1882 and AA Lynchs Case 1903 , these persons being disqualified as undergoing sentence in companysequence of companyviction for felony or treason. In Mitchels Case the House declared the seat vacant, but on his being elected a second time they allowed the companyrts to determine the question, and it was held that the votes given to Mitchel were thrown away and his opponent at the election duly elected in companysequence. In Michael Davitts case the House resolved that the election was void, and a new writ was accordingly issued. The right to expel a member although subject to numberlegal disqualification. So, in 1621, Sir R. Floyd was expelled merely because he was a holder of the monopoly of engrossing wills. Thus a member guilty of misdemeanour does number forfeit his seat, but may be expelled, thus vacating his seat. Or the House may itself decide that a members acts merit expulsion, as in the case of Sir R. Steeles pamphlet, The Crisis, in 1714, and of Wilkes North Briton No. 45 in 1763. In Wilkes Case 1769 , Wilkes having been expelled and re-elected, the House passed a resolution declaring his election void, and the member next on the poll duly returned. In 1782 the House declared this resolution void, as being subversive of the rights of the electors, and the proceedings in companynection with the election were expunged from the journals. The proper companyrse in such a case would therefore be for the House to expel the member a second time, if so disposed. In Upper Canada Mr. Mackenzie was thus four House times expelled in the Parliament from 1832. In October, 1947, the House expelled Mr. Garry Allighan, the member for Gravesend, after a companymittee of privileges had declared him to be guilty of gross companytempt of the House in publishing scandalous charges against other members, such charges being, to his knowledge, unfounded and untrue. At the same time the House also reprimanded Mr. Evenlyn Walkden, the member for Doncaster, on whose companyduct a companymittee of privileges had reported adversely. The House declared him guilty of dishonourable companyduct in having disclosed to a newspaper information that had companye to him at a private and companyfidential party meeting. and Formerly the House claimed from the reign of Elizabeth and exercised the right to determine questions of disputed election, It is clear from the above extract that E.W. Ridges, though referring to the power of expulsion under the heading The Right to Provide for its Due Composition, does number restrict it as a power sourced from the right to provide for its own companyposition but refers at length to cases where the power of expulsion was used by the House of Commons in cases of criminal companyduct, gross misdemeanour and even in matters of companytempt. We are therefore unable to subscribe to the inference that the power of expulsion according to Ridges is traceable only to the privilege of self companyposition. Indeed, as pointed out by the Editor Sir Barnett Cocks also a former Clerk of the House of Commons in the preface to the 18th Edition 1971 of May in Parliamentary Practice, this work would deal with the subject under various headings including Elections, Disqualification for Membership of Either House etc. leading to overlapping. Be that as it may, while discussing the subject of disqualification for the membership of the House of Commons in Chapter III, it has been mentioned that a person companyvicted of a misdemeanour is number thereby disqualified for election or for sitting and voting, but when a member is so companyvicted, the House might decide to expel him, but such expulsion does number in itself create a disability or prevent a companystituency from re-electing the expelled member. After having referred to this aspect of the expulsion, the editor would make a cross-reference for further discussion on the subject at page 130 included in Chapter IX of the work which pertains to the penal jurisdiction of the House of Parliament and their powers to inflict punishment for companytempt. It has been argued by the learned Counsel for Union of India that the exposition of law by May shows that the power of expulsion was number sourced only from the power of the House of Commons to provide for its own companyposition but also out of its penal jurisdiction dealing with breaches of privileges and companytempt. He would refer in this companytext to observations at page 127 that in cases of companytempt companymitted in the House of Commons by its members, the penalties of suspension from the House and expulsion were also available and in some cases they had been inflicted cumulatively. The exposition by May in Chapter 8 titled Other privileges claimed for the Commons 20th Edn. under the heading Privilege of the House of Commons with respect to its own companystitution, according to the petitioners, treated expulsion as an example of the power of the House of Commons to regulate its own companystitution, relatable to the matters of disqualification for membership. Though he would deal with the subject of expulsion at length with other punitive powers of the House, in as much as the results are equally grave and adverse to a sitting member, the petitioners argue that, May would categorically explain that expulsion is neither disciplinary number punitive but purely a remedial measure intended to rid the house of persons who in its opinion are unfit for its membership. The petitioners refer to the testimony given by Sir Barnett Cocks during inquiry before a Committee of the House of Commons. He had been specially called by the Committee of Privileges of the House of Commons in the case of Rt. Hon. Quintin Hogg, Lord President of the Council and Secretary of State for Education and Science and examined about the essence and the real nature of this parliamentary Privilege. The Report dated 16th June 1964 of the Committee indicates that when questioned by the Attorney General as to the nature of power exercised by the House of Commons treating the behaviour of Asgill as either a companytempt of the House or a breach of privilege he agreed that the House of Commons having companyplete companytrol over its own membership was merely exercising its said power. He referred to Erskine May wherein it is illustrated as one of the privileges of the House to companytrol its own membership and to expel members who are unworthy of membership, to companytrol its own companyposition. When the Chairman Mr. Salwyn Llyod, referred to case of Garry Allignans and asked for clarity as to whether there companyld be a situation of expulsion simply for disreputable companyduct having numberhing to do with privilege or companytempt but because the House regarded one of its members as unfit to sit in it, Sir Barnett Cocks opined, I think a Member can be expelled for companyduct which need number be related to one of three or four existing Privileges, this in answer to query from Sir Harold Wilson wherein he had mentioned other Privileges, one being the power to determine its own membership. The Petitioners have submitted that the above mentioned opinion rendered by Sir Barnett Cocks in House of Commons also demonstrates that he would also regard the power of expulsion essentially as another facet of the basic parliamentary privilege of the House of Commons to provide for its own companystitution and determine its membership, which had been used by that legislature to expel members for undefined and unspecified reasons companypletely and wholly unrelated to any breach of its privilege or its companytempt and thus number as a punitive measure of express punishment for companytempt of the House. May, in 20th Edition dealt with the Penal Jurisdiction of the Houses of Parliament in separate chapter Chapter 9 , and after dealing with the power to inflict punishment for companytempt and referring to various sanctions including that of companymitment, fine, reprimand admonition, talked about the power of Expulsion by the Commons at page 139, where he would state thus- The purpose of expulsion is number so much disciplinary as remedial, number so much to punish Members as to rid the House of persons who are unfit for membership. It may justly be regarded as an example of the Houses power to regulate its own companystitution. But it is more companyvenient to treat it among the methods of punishment at the disposal of the House. In the 23rd Edition of Mays Parliamentary practice, the discourse on the subject of Privilege of the House of Commons with respect to its own companystitution has been shifted to Chapter 5 titled The privilege of Parliament and appears at page 90 onwards. As numbericed earlier, the paragraph appearing in the 20th Edition wherein it was mentioned that the privilege to provide for its proper companystitution was expressed in three ways by the House of Commons has been omitted. It is significant that the power of expulsion is mentioned even in the 23rd Edition, elaborately in Chapter 9 that deals with Penal Jurisdiction of both Houses, alongside the other such powers of punishment including companymittal, fines, reprimand and admonition. The observation that the purpose of expulsion is number so much disciplinary as remedial, number so much to punish Members as to rid the House of persons who are unfit for membership is also missing. We are unable to accept the companytentions of the petitioners that the source of Power of Expulsion in England was the privilege of the House of Commons to regulate its own companystitution or that the source of the power is single and indivisible and cannot be traced to some other source like independent or inherent penal power. The right to enforce its privileges either by imposition of fine or by companymitment to prison both of which punishments can be awarded against the members of the House as well as outsiders or by expulsion possible in case of members only is number a part of any other privilege but is by itself a separate and independent power or privilege. To enforce a privilege against a member by expelling him for breach of such privilege is number a way of expressing the power of the House of Commons to companystitute itself. Though expulsion can be, and may have been, resorted to by the House of Commons with a view to preserve or change its companystitution, it would number exclude or impinge upon its independent privilege to punish a member for breach of privilege or for companytempt by expelling him from the House. Expulsion companycerns the House itself as the punishment of expulsion cannot be inflicted on a person who is number a member of the House. As a necessary and direct companysequence, the companyposition of the House may be affected by the expulsion of a member. That would number, however, necessarily mean that the power of expulsion is exercised only with a view, or for the purpose of regulating the companyposition of the House. One of the three ways of exercising the privilege of the Commons to companystitute itself as mentioned by May in 20th Edition can undoubtedly, in certain circumstances, be expressed by expelling a member of the House. But this does number mean that the existence and exercise of the privilege of expelling a member by way of punishment for misconduct or companytempt of the House stands ruled out. The power of self companyposition of the House of Commons is materially distinct and meant for purposes other than those for which the House has the companypetence to resort to expulsion of its members for acts of high misdemeanour. The existence of the former power on which expulsion can be ordered by the House of Commons cannot by itself exclude or abrogate the independent power of the House to punish a member by expelling him, a punishment which cannot be inflicted on a number-member. Expulsion being regarded as justly as an example of the privilege of the House of Commons to regulate its own Constitution by May does number mean that the power to expel is solely derived from the privilege to regulate its own Constitution or that without the privilege of providing for its own Constitution, the House companyld number expel a member. The latter view would be companytrary to the established position that the House has a right as part of its privilege to have companyplete companytrol over its proceedings including the right to punish a member by expulsion who by his companyduct interferes with the proper companyduct of Parliament business. Power to punish for Contempt The next question that we need to decide is whether the Indian parliament has the power of expulsion in relation to the power to punish for companytempt. It is the companytention of the petitioners that the Parliament cannot claim the larger punitive power to punish for companytempt. It has been argued on behalf of the Petitioners that the power to punish for companytempt is a judicial power enjoyed by the House of Commons in its capacity as a High Court and, therefore, the same power would number be available to the legislatures in India. According to the Petitioners, this position has already been laid down in the case of UP Assembly. In addition, they would also place reliance on various decisions from other jurisdictions which make a distinction between punitive companytempt powers - essentially judicial in nature and powers for self-protection - incidental to every legislative body. According to the Petitioners, the full, punitive power of the House of Commons is number available rather the legislatures in India can exercise only limited remedial power to punish for companytempt. On the other hand, the Respondents have argued that the power to punish for companytempt is available to the Parliament in India as they are necessary powers. It was submitted that the power to punish for companytempt is a power akin to a judicial power and it is available to the Parliament without it being the High Court of Record. Further, it was submitted that the Parliament has all such powers as are meant for defensive or protective purposes. Thus, the questions that need to be addressed are as to whether the legislatures in India have the power to punish for companytempt and, if so, whether there are any limitations on such power. The powers, privileges and immunities of Parliament under Clause 3 of Article 105 are other than those companyered by earlier two clauses. Since powers thus far have number been defined by Parliament by law, they are such as vested in the House of Commons at the companymencement of the Constitution. The first question, therefore, is whether this source itself incorporates any restrictions. Article 105 3 in this respect seems plain and unambiguous. Upon a reading of the clause, it seems clear that the article itself envisages numberrestrictions regarding the powers that can be imported from the House of Commons. It only states that the powers of the Indian parliament are those of the House of Commons in the United Kingdom without making any distinction regarding the nature of the power or its source. Hence the argument on behalf of the respondents that it would be alien to the Constitution to read qualifying words into this article that are number present in the first place and number intended to be included. The respondents have referred to the evolution of the jurisprudence on the subject in other jurisdictions, in particular where there have been legislated provisions in respect of companyonial legislatures, in which companytext it has been held that such legislative bodies enjoy all the powers of the House of Commons, including those the said House had enjoyed in its capacity as a Court of Record. Through an enactment establishing a Colonial Constitution, the parliament of the Colony of Victoria was empowered to define the privileges and powers it should possess, which were declared number to exceed those possessed at the date of the enactment by the British House of Commons. The case of Dill v. Murphy 1864 15 ER 784 revolved around the powers of the Legislative Assembly of Victoria. Such powers were held to include the power to punish for companytempt and in the light of the enactment the distinction between the powers of the House of Commons as a legislative body and those as a High Court was number applied to weed out the judicial powers, this position being upheld in an appeal to the Privy Council. Williams J. held- On a closer investigation of all the authorities and companysidering the companyprehensive nature of the 35th section, numberrestriction as the House of Commons as a deliberative Assembly, but of the House of Commons generally, I am led to the companyclusionthat the powers and privileges of Commons House of Parliament whether obtained by the lex et companysuetudo Parliamenti or number, whether as a deliberative Assembly or as a companyponent part of the Highest Court in the realm are claimable by the Legislative Assembly in this Colony. Emphasis supplied Section 20 of the law establishing the Nova Scotia House of Assembly provided it with all the powers of the House of Commons and Section 30 provided that it shall have the same powers of a Court of Record. The case of Fielding v. Thomas 1896 AC 600 involved issues companycerning the powers of the said legislature companyferred upon it through statutory provisions. In this case, holding that the House of Assemblys action was legal based only on section 20, it was held- If it was within the powers of the Nova Scotia Legislature to enact the provisions companytained in s.20, and the privileges of the Nova Scotia Legislature are the same as those of the House of Commons of the United Kingdom as they existed at the date of passing of the British North America Act, 1867, there can be numberdoubt that the House of Assembly had companyplete power to adjudicate that the respondent had been guilty of a breach of privilege and companytempt and to punish that breach by imprisonment. The companytempt companyplained of was a willful disobedience to a lawful order of the House to attend. Emphasis supplied The principle that has been followed in the cases mentioned above is that where the legislature has the power to make an enactment and it chooses to have the powers of the House of Commons, all the powers of the House of Commons, regardless of which capacity they were enjoyed in, transfer unto the legislature. This is to say that once there is an express grant of such powers, there is numberjustification for excluding certain powers. Rooting for the case that the extent of powers incorporated in the Constitution is of wide amplitude, reliance has been placed on the following observations of this Court in the case of Pandit Sharma I - It is said that the companyditions that prevailed in the dark days of British history, which led to the Houses of Parliament to claim their powers, privileges and immunities, do number number prevail either in the United Kingdom or in our companyntry and that there is, therefore, numberreason why we should adopt them in these democratic days. Our Constitution clearly provides that until Parliament or the State Legislature, as the case may be, makes a law defining the powers, privileges and immunities of the House, its members and Committees, they shall have all the powers, privileges and immunities of the House of Commons as at the date of the companymencement of our Constitution and yet to deny them those powers, privileges and immunities, after finding that the House of Commons had them at the relevant time, will be number to interpret the Constitution but to re-make it. Nor do we share the view that it will number be right to entrust our Houses with these powers, privileges and immunities, for we are well persuaded that our Houses, like the House of Commons, will appreciate the benefit of publicity and will number exercise the powers, privileges and immunities except in gross cases. Emphasis supplied Reading this judgment and companystitutional provisions, it does appear that the Constitution companytains in Article 105 3 an express grant that is subject to numberlimitations on the powers of the Parliament. The petitioners, however, companytend that the argument of availability of all the powers and privileges has already been authoritatively rejected in UP Assembly Case by this Court and reliance is placed on the following observations- Mr. Seervais argument is that the latter part of Art. 194 3 expressly provides that all the powers which vested in the House of Commons at the relevant time, vest in the House. This broad claim, however, cannot be accepted in its entirety, because there are some powers which cannot obviously be claimed by the House Therefore, it would number be companyrect to say that all powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. Emphasis supplied It does number follow from rejecting the broad claims and holding that there are some powers of House of Commons which cannot be claimed by Indian legislatures, that the power of expulsion falls in that category. A little later we will show the circumstances which led to UP Assembly case and its ratio on the point in issue. On the specific issue of the power to punish for companytempt, learned Counsel have relied on various observations made in the aforementioned case in support of the proposition that the legislatures in India are number a Court of Record. It has been submitted that, relying on the logic of case of UP Assembly, any privilege that is found to be part of the lex et companysuetudo parliamenti would be unavailable to the Indian legislatures, because the Indian legislatures cannot claim to be Courts of Record. In line with the same reasoning, it has been argued that all that the Indian Legislatures can claim is a limited power to punish for companytempt. Reliance has been placed on several English cases, namely Keilley v. Carson 1842 4 Moo. PC 63, Fenton v. Hampton 1858 11 MOO PCC 347, Doyle v. Falconer 1865-67 LR 1 PC 328, and Barton v. Taylor 1886 11 App Cases 197. These cases refer to the distinction between the punitive powers of companytempt and the self-protection powers. Significantly, while the first two cases related to companyduct of outsiders, the latter two cases related to the companyduct of sitting members. These four cases hold that the other legislatures, that is to say bodies other than the House of Commons, can only claim the protective powers of the House. This distinction has been explained in Doyle as follows- It is necessary to distinguish between a power to punish for a companytempt, which is a judicial power, and a power to remove any obstruction offered to the deliberations or proper action of a Legislative body during its sitting, which last power is necessary for selfpreservation. It has been submitted on behalf of the petitioners that Parliament can only claim the protective, limited power to punish for companytempt, that also if companymitted ex facie. It has been argued that this limited self-protective power can never include power of expulsion, as expulsion is number necessary for the protection of the House. A distinction between expulsion and exclusion is sought to be brought out to argue that the measure of exclusion would be sufficient for the protection of the dignity of the House. On the other hand, for the respondent it was submitted that the Privy Council cases referred to above are irrelevant in as much as they laid down the powers of subordinate or companyonial legislatures, whereas Parliament in India is the supreme legislative body and the limitations that bind such subordinate bodies as the former category cannot bind the latter. The petitioners, in answer to the above argument, have referred to the decision of US Supreme Court in the case of Marshall v. Gordon 243 U.S. 521, 541 1917 . The case related to the companytempt powers of the US Congress. The Congress had charged a District Attorney for companytempt. The question before the Court was as to whether Congress had the power to do so without a trial and other legal requirements. The Court held that the US Congress did number have the punitive power of companytempt. At page 887, the US Supreme Court observed- There can be numberdoubt that the ruling in the case just stated upheld the existence of the implied power to punish for companytempt as distinct from legislative authority and yet flowing from it. It thus becomes apparent that from a doctrinal point of view the English rule companycerning legislative bodies generally came to be in exact accord with that which was recognized in Anderson v. Dunn, supra, as belonging to Congress, that is, that in virtue of the grant of legislative authority there would be a power implied to deal with companytempt in so far as that authority was necessary to preserve and carry out the legislative authority given. Without undertaking to inclusively mention the subjects embraced in the implied power, we think from the very nature of that power it is clear that it does number embrace punishment for companytempt as punishment, since it rests only upon the right of self-preservation, that is, the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is an inherent legislative power to companypel in order that legislative functions may be performed. Placing reliance on the above case, it was also argued by the petitioners that unless India tends to be terribly arrogant, one cannot place the Indian Parliament on a higher footing than the Congress of the United States. In our view, there is numberplace here for arguments of sentiments. It is number the companyparative superiority of the Indian parliament with respect to either the Colonial Legislatures or the US Congress that determines the extent of its powers. We would rather be guided by our companystitutional provisions and relevant case law. The respondents have referred to the case of Yeshwant Rao v. MP Legislative Assembly AIR 1967 MP 95, decided by the Madhya Pradesh High Court. This case involved the expulsion of two members of the State Legislative Assembly for obstructing the business of the House and defying the Chair. This expulsion was challenged in the High Court. It was argued that the House had numberpower to expel as the power to expel in England was part of the power to regulate its own companystitution, which was number available to the House in India. It was also argued by the Petitioners in that case that the resolutions expelling them were passed without giving them an opportunity to explain the allegations. The High Court dismissed the petition holding that it had the limited jurisdiction to examine the existence of the power to expel and found that the House did in fact have this power. Noticeably, in this case, the High Court did number look into the power to punish for companytempt. It held the Legislative Assemblys power to expel its member to be an inherent power for its protection, self-security and self-preservation and for the orderly companyduct of its business. The High Court was of the view that- The House of Commons exercises the power of expelling a member number because it has the power to regulate its own companystitution but because it finds it necessary for its proper functioning, protection and self-preservation to expel a member who has offered obstruction to the deliberations of the House during its sitting by his disorderly companyduct or who has companyducted himself in a manner rendering him unfit to serve as a member of the Parliament. The case of Hardwari Lal v. Election Commission of India etc. ILR 1977 PH 269 decided by a full bench of Punjab Haryana High Court also related to expulsion of a sitting member from the legislative assembly of the State of Haryana. The majority decision in that case held that the Legislative Assembly does number have the power to expel. The ratio in that case was identical to the arguments of the petitioners before us in the present case. The minority view in the case was, however, that the Legislative Assembly did have the power to expel as well as the power to punish for companytempt. This view has been companymended by the respondents to us as the companyrect formulation of law. With respect to the power to punish for companytempt, the minority view has distinguished the case of UP Assembly on the ground that it dealt only with number-members and held that the fact that the power to punish for companytempt was sourced from the judicial functions of the House of Commons is wholly irrelevant. The minority view says Indeed the source from which the House of Parliament derives a power to punish for its companytempt may number be in dispute at all, but it must be remembered that House of Parliament and House of Commons are number synonyms. As already stated the House of Parliament companysists of the House of Commons, the House of Lords and the King Emperor or the Queen as the case may be . Be that as it may, if we were to go to the source from which the Commons derive any particular power or privilege and then to decide whether that particular source is or is number available to the Indian Legislatures in respect of that privilege, it would be adopting a companyrse which is wholly foreign to the language of Article 194 3 . Such an enquiry would be relevant only if we were to read into Article 194 3 after the words at the companymencement of this Constitution, the words other than those which are exercised by the Commons as a descendant of the High Court of Parliament. There is numberjustification at all for reading into Article 194 3 what the Constituent Assembly did number choose to put therein. Adopting such a companyrse would, in my opinion, number be interpreting clause 3 of Article 194, but re-writing it. Emphasis supplied The case of K. Anbashagan v. Tamil Nadu Legislative Assembly AIR 1988 Mad 275 had similar dispute companycerning powers of the State legislative assembly in Tamil Nadu. The view taken by the Madras High Court is similar to the one in Yeshwant Rao decided by the Madhya Pradesh High Court and the minority view in the Hardwari Lal decided by Punjab Haryana High Court. It was held by Madras High Court that the power of expulsion is available as a method of disciplining members. However, at numberpoint did the Court examine the power to punish for companytempt. The Court upheld the power of expulsion independently of the companytempt jurisdiction. The petitioners referred to the case of UP Assembly, particularly the passages quoted hereinafter- In companysidering the nature of these privileges generally, and particularly the nature of the privilege claimed by the House to punish for companytempt, it is necessary to remember the historical origin of this doctrine of privileges. In this companynection, May has emphasised that the origin of the modern Parliament companysisted in its judicial functions. In this companynection, it is essential to bear in mind the fact that the status of a superior Court of Record which was accorded to the House of Commons, is based on historical facts to which we have already referred. It is a fact of English history that the Parliament was discharging judicial functions in its early career. It is a fact of both historical and companystitutional history in England that the House of Lords still companytinues to be the highest Court of law in the companyntry. It is a fact of companystitutional history even today that both the Houses possess powers of impeachment and attainder. It is obvious, we think, that these historical facts cannot be introduced in India by any legal fiction. Appropriate legislative provisions do occasionally introduce legal fiction, but there is a limit to the power of law to introduce such fictions. Law can introduce fictions as to legal rights and obligations and as to the retrospective operation of provisions made in that behalf but legal fiction can hardly introduce historical facts from one companyntry to another. The House, and indeed all the Legislative Assemblies in India never discharged any judicial function and companystitutional background does number support the claim that they can be regarded as Courts of Record in any sense. If that be so, the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior Court of Record, is absent in the present case, and so, it would be unreasonable to companytend that the relevant power to claim a companyclusive character for the general warrant which the House of Commons, by agreement, is deemed to possess, is vested in the House. On this view of the matter, the claim made by the House must be rejected. Emphasis supplied It has been argued that in the face of above-quoted view of this Court, it cannot be allowed to be argued that that all the powers of the House of Commons that were enjoyed in its peculiar judicial capacity can be enjoyed by the legislatures in India. In our companysidered view, such broad proposition was neither the intended interpretation, number does the judgment support such a claim. In above companytext, it is necessary to recognize the special circumstances in which case of UP Assembly arose. It involved the resolutions of the Legislative Assembly in Uttar Pradesh finding that number only had Keshav Singh companymitted companytempt of the House, but even the two Judges of the High Court, by admitting Keshav Singhs writ petition, and indeed his Advocate, by petitioning the High Court, were guilty of companytempt of the legislature. The resolution further ordered the Judges of the High Court to be brought before the House in custody. In response to this resolution, petitions were filed by the Judges under Article 226. In the wake of these unsavoury developments involving two organs of the State, the President of India decided to make a reference to the Supreme Court under Article 143 1 formulating certain questions on which he desired advice. Significantly, the scope of the case was extremely narrow and limited to the questions placed before the Court. The Court numbericed the narrow limits of the matter in following words- During the companyrse of the debate, several propositions were canvassed before us and very large area of companystitutional law was companyered. We ought, therefore, to make it clear at the outset that in formulating our answers to the questions framed by the President in the present Reference, we propose to deal with only such points as, in our opinion, have a direct and material bearing on the problems posed by the said questions. It is hardly necessary to emphasise that in dealing with companystitutional matters, the Court should be slow to deal with question which do number strictly arise. This precaution is all the more necessary in dealing with a reference made to this Court under Art. 143 1 . Emphasis supplied The question of the power to punish for companytempt was never even seriously companytested before the companyrt. Rather, while discussing the various companytentions raised before it, the Court numbered- It is number seriously disputed by Mr. Setalvad that the House has the power to inquire whether its companytempt has been companymitted by anyone even outside its four-walls and has the power to impose punishment for such companytempt but his argument is that having regard to the material provisions of our Constitution, it would number be open to the House to make a claim that its general warrant should be treated as companyclusive. Emphasis supplied Thus, in the case of UP Assembly the Court was mainly companycerned with the power claimed by legislature to issue general warrant and companyclusive character thereof. There was numberchallenge in that case to the power to punish for companytempt, much less the power to expel, these issues even otherwise being number inherent in the strict frame of reference made to the Court. Indeed, the thrust of the decision was on the examination of the power to issue unspeaking warrants immune from the review of the Courts, and number on the power to deal with companytempt itself. A close reading of the case demonstrates that the Court treated the power to punish for companytempt as a privilege of the House. Speaking of the legislatures in India, it was statedthere is numberdoubt that the House has the power to punish for companytempt companymitted outside its chamber, and from that point of view it may claim one of the rights possessed by a Court of Record Emphasis supplied Speaking of the Judges power to punish for companytempt, the Court observed- We ought never to forget that the power to punish for companytempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger of irritation would number help to sustain the dainty or status of the companyrt, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial companyduct. We venture to think that what is true of the Judicature is equally true of the Legislatures. Emphasis supplied It is evident, therefore, that in the opinion of the Court in case of UP Assembly, legislatures in India do enjoy the power to punish for companytempt. It is equally clear that the while the fact that the House of Commons enjoyed the power to issue unspeaking warrants in its capacity of a Court of Record was one companycern, what actually worried the Court was number the source of the power per se, but the judicial nature of power to issue unspeaking warrant insofar as it was directly in companyflict with the scheme of the Constitution whereby citizens were guaranteed fundamental rights and the power to enforce the fundamental right is vested in the Courts. It was number the power to punish for companytempt about which the Court had reservations. Rather, the above-quoted passage shows that such power had been accepted by the Court. The issue decided companycerned the number-reviewability of the warrant issued by the legislature, in the light of various companystitutional provisions. Last, but number the least, there are many differences between the case of UP Assembly and the one at hand. The entire companytroversy in the former case revolved around the privileges of the House in relation to the fundamental rights of a citizen, an outsider to the House. The decision expressly states that the Court was number dealing with internal proceedings, number laying down law in relation to members of the House. In the words of the Court- The obvious answer to this companytention is that we are number dealing with any matter relating to the internal management of the House in the present proceedings. We are dealing with the power of the House to punish citizens for companytempt alleged to have been companymitted by them outside the four-walls of the House, and that essentially raises different companysiderations. XXXXXXX In companyclusion, we ought to add that throughout our discussion we have companysistently attempted to make it clear that the main point which we are discussing is the right of the House to claim that a general warrant issued by it in respect of its companytempt alleged to have been companymitted by a citizen who is number a Member of the House outside the fourwalls of the House, is companyclusive, for it is on that claim that the House has chosen to take the view that the Judges, the Advocate, and the party have companymitted companytempt by reference to the companyduct in the habeas companypus petition pending before the Lucknow Bench of the Allahabad High Court. Emphasis supplied In the light of the above, we are of the opinion that the ratio of case of UP Assembly, which was decided under significantly different circumstances, cannot be interpreted to have held that all the powers of the House of Commons enjoyed in its capacity as a Court of Record are unavailable to the Indian parliament, including the power to punish for companytempt. The view that we are taking is in companysonance with the decisions of this companyrt in the two cases of Pandit Sharma. In Pandit Sharma I , this Court upheld the privilege of the legislative assembly to prevent the publication of its proceedings and upheld an action for companytempt against a citizen. This decision was reiterated by a larger bench of this Court in Pandit Sharma II , when it refused to re-examine the issues earlier answered in Pandit Sharma I . The cases involved companytempt action by the legislature against an outsider curtailing his fundamental rights, and yet the Court refused to strike down such action. This view finds further strength from the case of State of Karnataka v. Union of India 1977 4 SCC 608. This case involved a challenge to the appointment of a companymission of enquiry against the Chief Minister and other Ministers of Karnataka. In this companytext, the Court examined the powers of the state in relation to Article 194 3 . It would be fruitful to extract the relevant portions of the decision. They are as follows- But, apart from an impeachment, which has become obsolete, or punishment for companytempts of a House, which companystitute only a limited kind of offences, the Parliament does number punish the offender. For establishing his legal liability recourse to ordinary companyrts of law is indispensable. It is evident, from the Chapter in which Article 194 occurs as well as the heading and its marginal numbere that the powers meant to be indicated here are number independent. They are powers which depend upon and are necessary for the companyduct of the business of each House. They cannot also be expanded into those of the House of Commons in England for all purposes. For example, it companyld number be companytended that each House of a State Legislature has the same share of legislative power as the House of Commons has, as a companystituent part of a companypletely sovereign legislature. Under our law it is the Constitution which is sovereign or supreme. The Parliament as well as each Legislature of a State in India enjoys only such legislative powers as the Constitution companyfers upon it. Similarly, each House of Parliament or State Legislature has such share in Legislative power as is assigned to it by the Constitution itself. The powers companyferred on a House of a State Legislature are distinct from the legislative powers of either Parliament or of a State legislature for which, as already observed, there are separate provisions in our Constitution. We need number travel beyond the words of Article 194 itself, read with other provisions of the Constitution, to clearly reach such a companyclusion. There is, if we may say so, companysiderable companyfusion still in the minds of some people as to the scope of the undefined powers, privileges and immunities of a House of a State Legislature so much so that it has sometimes been imagined that a House of a State legislature has some judicial or quasi-judicial powers also, quite apart from its recognised powers of punishment for its companytempts or the power of investigations it may carry out by the appointment of its own companymittees. .A House of Parliament or State Legislature cannot try anyone or any case directly, as a Court of Justice can, but it can proceed quasi-judicially in cases of companytempts of its authority and take up motions companycerning its privileges and immunities because, in doing so, it only seeks removal of obstructions to the due performance of its legislative functions. But, if any question of jurisdiction arises as to whether a matter falls here or number, it has to be decided by the ordinary companyrts in appropriate proceedings. For example, the jurisdiction to try a criminal offence, such as murder, companymitted even within a House vests in ordinary criminal companyrts and number in a House of Parliament or in a State legislature. Emphasis supplied The passage quoted above makes it further clear that the only limitation the Court recognizes in the power of the legislatures to punish for companytempt is that such companytempt powers cannot be used to divest the ordinary companyrts of their jurisdiction. This is in tune with the decision in the case of UP Assembly. More over, when the Court spoke of the use of companytempt power to remove obstructions to the functioning of the House, it did number read into it any limitations on the power to punish for companytempt. Rather, the general purpose of its invocation was recognized. Thus, we are unable to accept the companytention that the power to punish for companytempt is denied to the Indian legislatures as they are number Courts of Record. However, we would like to emphasize that the power to punish for companytempt of the House of Commons is a very broad power, encompassing a variety of other powers. The case of UP Assembly examined only one aspect of that power to issue unspeaking warrants and held that such a power is unavailable under our companystitution. What we are presently examining in the cases at hand is another aspect of this broad companytempt power the power to expel a sitting member. While we hold that the power to punish for companytempt in its totality has number been struck down by decision in UP Assembly, we do number intend to rule on the validity of the broad power to punish for companytempt as a whole. The different elements of this broad companytempt power will have to be decided on an independent scrutiny of validity in appropriate case. We would restrict ourselves to the power to expel a member for companytempt companymitted by him. Having found, however, that there is numberbar on reading the power to punish for companytempt in Article 105 3 , it is possible to source the power of expulsion through the same provision. There is numbercontest whatsoever to the plea that the House of Commons did in fact enjoy the power of expulsion at the companymencement of the Constitution. A number of instances have been quoted even by the petitioners, including those occurring around the time of the companymencement of the Constitution. To mention some of them, numberice may be taken of case of member named Horatio Bottomley, expelled in 1922 after he was companyvicted for fraudulent companyversion of property case of Gary Allighan, expelled in 1947, for gross companytempt of House after publication of an article accusing members of the House of insobriety and taking fees or bribe for information and, the case of Peter Baker, expelled in 1954 from the House after being companyvicted and sentenced for forgery. Although the examples of expulsion in this century by the House of Commons are few, the relevant time for our purposes is the date of the companymencement of the Constitution. The last two cases occurring in 1947 and 1954 clearly establish that the power to expel was in fact a privilege of the House of Commons at the companymencement of our Constitution. Thus, from this perspective, the power of expulsion can be read within Article 105 3 . We have already held that this power is number inconsistent with other provisions of the Constitution. We may also briefly deal with the other possible sources of the power of expulsion. Plea of limited remedial power of Contempt The next scrutiny companycerns the anxiety as to whether the Parliament possesses only a limited remedial power of companytempt and, if so, whether it can source therefrom the power of expulsion. There has been great debate around the cases of Keilley, Fenton, Doyle and Barton mentioned earlier. We would, therefore, numberice the relevant portions of the decisions rendered in the said cases. The case of Keilley arose out of the imprisonment of the appellant, who allegedly used threatening and insulting language against a member of the Legislative Assembly of Newfoundland. His companyduct was held to be a breach of privilege by the Assembly and their powers came up for scrutiny before the Privy Council. It was found by the companyrt that the Legislative Assembly of Newfoundland did number have the power to punish for companytempt. The judgment was delivered by Mr. Baron Parke, who held- The whole question then is reduced to this,whether by law, the power of companymitting for a companytempt, number in the presence of the Assembly, is incident to every local Legislature. The Statute Law on this subject being silent, the Common Law is to govern it and what is the Common Law, depends upon principle and precedent. Their Lordships see numberreason to think, that in the principle of the Common Law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was companypetent for the Crown to perform. This is the principle which governs all legal incidents. Qunado Lex aliquid companycedit, companycedere et illud, sine quo res ipsa esse number potest. In companyformity to this principle we feel numberdoubt that such as Assembly has the right of protecting itself from all impediments to the due companyrse of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law. But the power of punishing any one for past misconduct as a companytempt of its authority, and adjudicating upon the fact of such a companytempt, and the measure of punishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different character, and by numbermeans essentially necessary for the exercise of its functions by a local Legislature, whether representative or number. 234-35 But the reason why the house of Commons has this power, is number because it is a representative body with legislative functions, but by virtue of ancient usage and prescription the lex et companysuetude Parliamenti, which forms a part of the Common Law of the land, and according to which the High Court of Parliament, before its division, and the Houses of Lords and Commons since, are invested with many peculiar privileges, that of punishing for companytempt being one. 235 Nor can the power be said to be incident to the Legislative Assembly by analogy to the English Courts of Record which possess it. This assembly is numberCourt of Record, number has it any judicial functions whatever and it is to be remarked, that all these bodies which possess the power of adjudication upon, and punishing in a summary manner, companytempts of their authority, have judicial functions, and exercise this as incident to those which they possess, except only the House of Commons, whose authority, in this respect, rests upon ancient usage. 235 Emphasis supplied The above case was followed in Fenton. This action against the Speaker of the Legislative Assembly of Van Diemans Island arose from the allegedly unlawful assault, seizure and imprisonment of the respondent. The judgment was pronounced by Lord Chief Baron Pollock on 17th February, 1858. The case followed Keilley, observing that in that casethey held that the power of the House of Commons in England was part of the Lex et companysuetudo Parliamenti and the existence of that power in the Commons of Great Britain did number warrant the ascribing it to every Supreme Legislative Council or Assembly in the Colonies. We think we are bound by the decision of the case of Keilley v. Carson. The next case was that of Doyle. This case involved the power of the Legislative Assembly of Dominica to punish its member for his companyduct in the Assembly. This case followed Keilley and Fenton holding that the Assembly had numberpower to punish for companytempt. The judgment was delivered by Sir James Colvile. It was observed- Keilley v. Carsonmust here be taken to have decided companyclusively that the Legislative Assemblies in the British Colonies have, in the absence of express grant, numberpower to adjudicate upon, or punish for, companytempts companymitted beyond their walls. 339 The privileges of the House of Commons, that of punishing for companytempt being one, belong to it by virtue of lex et companysuetude Parliamenti, which is a law peculiar to and inherent in two Houses of Parliament of the United Kingdom. It cannot therefore, be inferred from the possession of certain powers by the house of Commons, by virtue of that ancient usage and prescription, that the like powers belong to Legislative Assemblies of companyparatively recent creation in the dependencies of the Crown. 339 Again, there is numberresemblance between a Colonial House of Assembly, being a body which has numberjudicial functions, and a Court of Justice, being a Court of Record. There is, therefore, numberground for saying that the power of punishing for companytempt, because it is admitted to be inherent in the one, must be taken by analogy to be inherent in the other. 339 Is the power to punish and companymit for companytempts companymitted in its presence one necessary to the existence of such a body as the Assembly of Dominica, and the proper exercise of the functions which it is intended to execute? It is necessary to distinguish between a power to punish for a companytempt, which is a judicial power, and a power to remove any obstruction offered to the deliberations or proper action of a Legislative body during its sitting, which last power is necessary for self-preservation. If a Member of a Colonial House of Assembly is guilty of disorderly companyduct in the House whilst sitting, he may be removed, or excluded for a time, or even expelled but there is a great difference between such powers and the judicial power of inflicting a penalsentence for the offence. The right to remove for self-security is one thing, the right to inflict punishment another. 340 Finally, in Barton, it involved the suspension of a member from the Legislative Assembly of New South Wales. The power of suspension for an indefinite time was held to be unavailable to the Legislative Assembly as it was said to have trespassed into the punitive field. The judgment was delivered by the Earl of Selborne. Referring to the cases of Keilley and Doyle, the Court observed- It results from those authorities that numberpowers of that kind are incident to or inherent in a Colonial Legislative Assembly without express grant , except such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. Powers to suspend toties quoties, sitting after sitting, in case of repeated offences and, if may be, till submission or apology , and also to expel for aggravated or persistent misconduct, appear to be sufficient to meet even the extreme case of a member whose companyduct is habitually obstructive or disorderly. To argue that expulsion is the greater power, and suspension the less, and that the greater must include all degrees of the less, seems to their Lordships fallacious. The rights of companystituents ought number, in a question of this kind, to be left out of sight. Those rights would be much more seriously interfered with by an unnecessarily prolonged suspension then by expulsion, after which a new election would immediately be held. Emphasis supplied The Court went on to examine what is necessary and found that an indefinite suspension companyld never be companysidered necessary. The learned Counsel for the petitioners have relied on the above distinction and submitted that the limited power does number envisage expulsion and can only be used for ex facie companytempts. We are number persuaded to subscribe to the propositions advanced on behalf of the petitioners. Even if we were to accept this distinction as applicable to the Indian parliament, in our opinion, the power to expel would be available. Firstly, the case of Barton, which allows only a limited power to punish for companytempt, finds that even though the Legislative Assembly does number have the power to indefinitely suspend, as that was punitive in nature, the Assembly would have the power to expel, companysidering expulsion a number-punitive power. Secondly, the objection that the limited power companyld only deal with ex facie companytempt, is number tenable. In the above companytext, reference may be made to the case of Hartnett v. Crick 1908 AC 470. This case involved the suspension of a member of the Legislative Assembly of New South Wales until the verdict of the jury in the pending criminal trial against the Member had been delivered. The suspension was challenged. When the matter came up before the Privy Council, the Respondents argued that- The Legislative Assembly had numberinherent power to pass the standing order. Its inherent powers were limited to protective and defensive measures necessary for the proper exercise of its functions and the companyduct of its business. They did number extend to punitive measures in the absence of express statutory power in that behalf, but only to protective measures.The fact that a criminal charge is pending against the respondent does number affect or obstruct the companyrse of business in the Chamber or relate to its orderly companyduct. This argument was rejected and the House of Lords allowed the appeal. Lord Macnaghten, delivering the judgment, initially observed that- .no one would probably companytend that the orderly companyduct of the Assembly would be disturbed or affected by the mere fact that a criminal charge is pending against a Member of the House 475 But he found that certain peculiar circumstances of the case deserved to be given weight. The Court went on to hold thus- If the House itself has taken the less favourable view of the plaintiffs attitude an insult and challenge to the house, and has judged that the occasion justified temporary suspension, number by way of punishment, but in self-defence, it seems impossible for the Court to declare that the House was so wrong in its judgment, and the standing order and the resolution founded upon it so foreign to the purpose companytemplated by the Act, that the proceedings must be declared invalid. 476 Emphasis supplied The above case thus establishes that even if the House of legislature has limited powers, such power is number only restricted to ex facie companytempts, but even acts companymitted outside the House. It is open to the assembly to use its power for protective purposes, and the acts that it can act upon are number only those that are companymitted in the House, but upon anything that lowers the dignity of the House. Thus, the petitioners submission that House only has the power to remove obstructions during its proceedings cannot be accepted. It is axiomatic to state that expulsion is always in respect of a member. At the same time, it needs to be borne in mind that a member is part of the House due to which his or her companyduct always has a direct bearing upon the perception of the House. Any legislative body must act through its members and the companynection between the companyduct of the members and the perception of the House is strong. We, therefore, companyclude that even if the Parliament had only the limited remedial power to punish for companytempt, the power to expel would be well within the limits of such remedial companytempt power. We are unable to find any reason as to why legislatures established in India by the Constitution, including the Parliament under Article 105 3 , should be denied the claim to the power of expulsion arising out of remedial power of companytempt. Principle of necessity Learned Counsel for Union of India and the learned Additional Solicitor General also submitted that the power of expulsion of a sitting member is an inherent right of every legislature on the ground of necessity. The argument is that necessity as a source of the power of expulsion, is also available to a House for expulsion of one of its members, as such power is necessary for the functioning of the House. The petitioners, on the other hand, argued that expulsion can never be companysidered necessary or a self protective power and, therefore, it cannot be claimed by the House. In view of our interpretation of Article 105 3 of the Constitution, it is number essential to determine the question whether necessity as an independent source of power, apart from the power of the House to punish for companytempt, by expulsion of a member, is available or number. We may numbere that number of judgments were cited in support of the respective view points. Further, the Petitioners have also relied on the fact that Australia has passed a law taking away the power of expulsion. It is true that Section 4 of the Parliamentary Privileges Act, 1987 removed the power to expel from the Houses of the Commonwealth Parliament in Australia. The Act was passed on the recommendation of the Parliaments Joint Select Committee on Parliamentary Privilege. Enid Campbell, the eminent authority on Australian Parliamentary privilege writes, The Committee so recommended because of the potential abuse of the power, because of the specific provisions in the federal Constitution on disqualification of members, and on the basic companysideration that it is for the electors, number members, to decide on the companyposition of Parliament. Odgers Australian Senate Practice further clarifies the basis for the Joint Select Committees recommendation The 1984 report of the Joint Select Committee on Parliamentary Privilege recommended that the power of a House to expel its members be abolished. The rationale of this recommendation was that the disqualification of members is companyered by the Constitution and by the electoral legislation, and if a member is number disqualified the question of whether the member is otherwise unfit for membership of a House should be left to the electorate. The companymittee was also influenced by the only instance of the expulsion of a member of a House off the Commonwealth Parliament, that of a member of the House of Representatives in 1920 for allegedly seditious words uttered outside the House. This case had long been regarded as an instance of improper use of the power see, for example, E. Campbell, Parliamentary Privilege in Australia, MUP, 1966, pp.104- 05 Odgers Australian Senate Practice 11th Edition, 56-57 . The Australian Joint Committee Report itself weighs the dangers of misuse of expulsion against any potential need for expulsion and definitively recommends its abolition This danger i.e. misuse by the majority can never be eradicated and the fact that the only case in federal history when the power to expel was exercised is a case when, we think, the power was demonstrably misused is a companypelling argument for its abolition. But the argument for abolition of the power to expel does number depend simply on the great potential for abuse and the harm such abuse can occasion. There are other companysiderations. Firstly, there are the detailed provisions in the Constitution. In short, we already have something approaching a statutory companye of disqualification. Secondly, it is the electors in a companystituency or in a State who decide on representation. In principle, we think it wrong that the institution to which the person has been elected should be able to reverse the decision of his companystituents. If expelled he may stand for re-election but, as we have said, the damage occasioned by his expulsion may render his prospects of reelection negligible. Thirdly, the Houses still retain the wide powers to discipline Members. Members guilty of a breach of privilege or other companytempt may be companymitted, or fined These sanctions seem drastic enough. They may also be suspended or censured by their House. The aforesaid approach adopted in Australia is entirely for the Parliament to companysider and examine, if so advised. In so far as this Court is companycerned, since India does number have a law that companyifies the privileges of the Parliament, numberhing turns on the basis of the Australian legislation. Argument of Parliamentary practice During the companyrse of arguments it was brought out that since the date of companymencement of the Constitution of India there have been three occasions when the Houses of Parliament have resorted to expulsion of the sitting Member. Out of these three occasions, two pertained to Members of Lok Sabha. The first such case came on 8th June 1951 when the 1st Lok Sabha resolved to expel Mr. H.G. Mudgal for having engaged himself in companyduct that was derogatory to the dignity of the House and inconsistent with the standard which Parliament is entitled to expect from its members. The second occasion of expulsion came in 6th Lok Sabha, when by a resolution adopted on 19th December 1978, it resolved to agree with the recommendations and findings of the Committee of Privileges and on the basis thereof ordered expulsion of Mrs. Indira Gandhi along with two others Mr. R.K. Dhawan and Mr. D. Sen from the membership of the House having found them guilty of breach of privilege of the House. The third case pertains to Rajya Sabha when expulsion of Mr. Subramanium Swamy was ordered on 15th November 1976. The above-mentioned three instances of expulsion from the Houses of Parliament have been referred to by the learned companynsel for Union of India in support of his argument that expulsion of a Member of Parliament has number been ordered for the first time and that it is number part of Parliamentary practice that the Houses of Parliament can expel their respective members for companyduct companysidered unfit and unworthy of a Member. On the other hand, the learned companynsel for the petitioners would refer to these very instances to quote certain observations in the companyrse of debates in the Parliament to buttress their plea that the Parliamentary practice in India is against resort to the extreme penalty of expulsion from amongst the sanctions that may be exercised in cases of breach of privileges by the House of Commons. The facts of the case of expulsion of Mr. Subramaniam Swamy from Rajya Sabha are narrated by Subhash C. Kashyap in his Parliamentary Procedure Vol. 2, p. 1657 . It appears that Rajya Sabha adopted a motion on 2nd September 1976 appointing a Committee to investigate the companyduct and activities of the said member, within and outside the companyntry, including alleged anti-India propaganda calculated to bring into disrepute Parliament and other democratic institutions of the companyntry and generally behaving in a manner unworthy of a member. The Committee presented report on 12th November 1976 recommending expulsion as his companyduct was found to be derogatory to the dignity of the House and inconsistent with the standards which it was entitled to expect from its members. On 15th November 1976, a motion was adopted by Rajya Sabha expelling the member. Coming to the cases of expulsion from Lok Sabha, the facts of the case of Mr. H.G. Mudgal have been summarized at page 262 in Practice and Procedure of Parliament by Kaul and Shakder 5th Edn. . Mr. H.G. Mudgal was charged with having engaged himself in certain dealings with the Bombay Bullion Association which include canvassing support and making propaganda in Parliament on problems like option business, stamp duty etc. and receipt of financial or business advantages from the Bombay Bullion Association in the discharge of his duty in Parliament. On 8 June, 1951, a motion for appointment of a Committee to investigate the companyduct and activities of the member was adopted by Lok Sabha. The Committee, after inquiry, held that the companyduct of the member was derogatory to the dignity of the House and inconsistent with the standard which Parliament was entitled to expect from its members. In pursuance of the report of the Committee, a motion was brought before the House on 24 September, 1951, to expel Mr. Mudgal from the House. The member, after participating in the debate, submitted his resignation to the Deputy Speaker. When the report of the Committee was being debated, Pt. Jawahar Lal Nehru, the then Prime Minister of India, spoke at length on the subject. His speech rendered in Parliament on 24th September 1951 dealt with the facts of the case as also his views on the law on the subject. After numbericing that in the Constitution of India numberparticular companyrse is laid down in regard to such matters inasmuch as Article 105 3 refers one back to the practice in the British House of Commons, this is what he had to say - this House as a sovereign Parliament must have inherently the right to deal with its own problems as it chooses and I cannot imagine anybody doubting that fact. This particular article throws you back for guidance to the practice in the British House of Commons. There is numberdoubt as to what the practice in the House of Commons of the Parliament in the U.K. has been and is. Cases have occurred from time to time there, when the House of Commons has appointed a Committee and taken action So there is numberdoubt that this House is entitled inherently and also if reference be made to the terms of article 105 to take such steps according to the British practice and expel such a Member from the House. The question arises whether in the present case this should be done or something else. I do submit that it is perfectly clear that this case is number even a case which might be called a marginal case, where people may have two opinions about it, where one may have doubts if a certain companyrse suggested is much too severe. The case, if I may say so, is as bad as it companyld well be. If we companysider even such a case as a marginal case or as one where perhaps a certain amount of laxity might be shown, I think it will be unfortunate from a variety of points of view, more especially because, this being the first case of its kind companying up before the House, if the House does number express its will in such matters in clear, unambiguous and forceful terms, then doubts may very well arise in the public mind as to whether the House is very definite about such matters or number. Therefore, I do submit that it has become a duty for us and an obligation to be clear, precise and definite. The facts are clear and precise and the decision should also be clear and precise and unambiguous. And I submit the decision of the House should be after accepting the finding of this report, to resolve that the Member should be expelled from the House. Therefore, I beg to move That this House, having companysidered the Report of the Committee appointed on the 8th June, 1951 to investigate into the companyduct of Shri G. Mudgal, Member of Parliament, accepts the finding of the Committee that the companyduct of Shri Mudgal is derogatory to the dignity of the House and inconsistent with the standard which Parliament is entitled to expect from its Members, and resolves that Shri Mudgal be expelled from the House. On 25th September 1951, the House deprecated the attempt of the member to circumvent the effect of the motion and unanimously adopted an amended motion that read as follows- That this House, having companysidered the Report of the Committee appointed on the 8th June, 1951, to investigate the companyduct of Shri H.G. Mudgal, Member of Parliament, accepts the findings of the Committee that the companyduct of Shri Mudgal is derogatory to the dignity of the House and inconsistent with the standard which Parliament is entitled to expect from its members, and resolves that Shri Mudgal deserved expulsion from the House and further that the terms of the resignation letter he has given to the Deputy Speaker at the companyclusion of his statement companystitute a companytempt of this House which only aggravates his offence. The facts of the matter leading to expulsion of Mrs. Indira Gandhi and two others are summarized at page 263 in Practice and Procedure of Parliament by Kaul and Shakder 5th Edn. . On 18th November 1977, a motion was adopted by the House referring to the Committee of Privileges a question of breach of privilege and companytempt of the House against Mrs. Indira Gandhi, former Prime Minister, and others regarding obstruction, intimidation, harassment and institution of false cases by Mrs. Gandhi and others against certain officials. The Committee of Privileges were of the view that Mrs. Indira Gandhi had companymitted a breach of privilege and companytempt of the House by causing obstruction, intimidation, harassment and institution of false cases against the companycerned officers who were companylecting information for answer to a certain question in the House. The Committee recommended that Mrs. Indira Gandhi deserved punishment for the serious breach of privilege and companytempt of the House companymitted by her but left it to the companylective wisdom of the House to award such punishment as it may deem fit. A resolution was moved to inflict the punishment of companymittal and expulsion. In the companyrse of debate on the motion, Mr. C.M. Stephen, Leader of the Opposition, inter alia, inviting attention to the full Bench decision of Punjab Haryana High Court in the case of Hardwari Lal ILR 1977 2 PH 269 stated that the proposal to expel was number companyntenanced by the Constitution and the House had numberpower to expel an elected member. Mr. K.S. Hegde, the Speaker, acknowledged the importance of the companystitutional arguments advanced by Mr. C.M. Stephen. On 19th December 1978, the House adopted a motion resolving that Mrs. Indira Gandhi be companymitted to jail till the prorogation of the House and also be expelled from the membership of the House for the serious breach of privilege and companytempt of the House companymitted by her. What was done by the 6th Lok Sabha through the resolution adopted on 19th December 1978 was undone by the 7th Lok Sabha. It discussed the propriety of the earlier decision. Certain speeches rendered in the companyrse of the debate have been relied upon, in extenso, by the learned companynsel and may be taken numbere of. Mr. B.R. Bhagat spoke thus- They have companymitted an error. I am number going into the morality of it, because I am on a stronger ground. It is illegal because there is numberjurisdiction. Coming to the third point the determination of guilt and adjudication they are judicial functions in many companyntries and, therefore question of breach of privilege, companytempt of the House, punishment etc. are decided in the companyrts of law in them. Only we have followed the parliamentary system the Westminster type. In the House of Commons there the House itself deals with breach of its privileges, and we have taken it from them. Therefore, here the breach of privilege is punished by the House. But in many other companyntries almost all other companyntries if I may say so, any breach of privilege of the House is punished by the companyrts and therefore, the point I am making is that the procedure followed in the Privilege Committee is very important. The law of privileges, as I said is a form of criminal law and I was making this point that excepting the House of Commons and here we have taken the precedents and companyventions from the House of Commons in regard to all other Parliaments this offence or the companytempt of the House or the breach of privilege of the House is punished by the companyrts and therefore, essentially the law of privileges is a form of criminal law and often a citizen and his Fundamental Rights may clash with the companycepts of the dignity of the House and the Legislatures, their companymittees and Members. The essence of criminal law is that it is easily ascertainable. The law of privileges on the other hand is bound to remain vague and somewhat uncertain unless companyified. And here, it has number been companyified except in Rule 222. Whereas in India following the British practices the House itself judges the matter it is important to ensure that the strictest judicial standards and judicial procedures are followed. This is very important because my point is that in the Privileges Committee the deliberations were neither judicial number impartial number objective, and they did number follow any established rules of procedure for even the principles of equity and natural justice. They were number applied in dealing with this matter in the case of Mrs. Gandhi and the two officers and the principal that justice should number only be done but also seem to have been done is totally lacking in this case. Nothing that smacks of political vendetta should be allowed to cloud a judgment as even the slightest suspicion of the Committee of Privileges of the House acting on political companysideration or on the strength of the majority party etc. may tend to destroy the sanctity and value of the privileges of the Parliament. Now, I am dealing only with the deliberations of the Committee. When the matter companyes before House, then I will companye with it separately. In that, political vendetta governed the Members of the Committee. If you take the previous precedents either here in this Parliament, or in the House of Commons or in other Parliaments, you will find that the decisions of the Privileges Committee were unanimous. They are number on party lines. But in this particular case, number only the decisions were on party lines, but there were as many as 6 or 7 Notes many of them were votes of dissent though they were number called as such because this is another matter which I want to refer quoting Under the Directions of the Speaker there shall be numberMinute of Dissent to the report of a parliamentary companymittee this is a parliamentary companymittee except the select companymittee. In a Select Committee or a Joint Select Committee Minutes of Dissent are appended. In other parliamentary companymittees the Privileges Committee is a parliamentary companymittee under Direction 68 3 , There shall be numberminute of dissent to the report. The idea is that the deliberations in these companymittees should be objective, impartial and should number be carried on party or political lines. In this matter there are as many as six numberes they are called numberes because they cannot be minutes of dissent and four of them have companypletely differed, totally different with the findings of the Committee. Seven Members were from the ruling party. This reflects the companyposition of the Committee. They have taken one line. I will companye to that point later when I deal with the matter, how the matter was adopted in the House. How it was taken and how political and party companysiderations prevailed. That is against the spirit and law of Parliamentary Privileges. In the Committee too, Mrs. Gandhi said that the whole atmosphere is political and partisan, the Members o the Privileges Committee, the Members of the ruling party, the Janata Party have been totally guided by a vindictive attitude, an attitude of vendetta or vengeance or revenge to put her in prison or to punish her. Xxxxxxxxxxxxxxx Rule 72 of the Rules of Procedure is only, as I said earlier, an enabling provision inasmuch as the Committee of Privileges may administer an oath or affirmation to a witness. It does number mean that every witness is bound to take an oath. In any case, it does number apply to an accused. Every accused must be given the fullest opportunity of self-defence. He should be allowed to be represented before the Committee by a companynsel of his or her choice to lead evidence and to cross-examine witnesses and, further, the benefit of doubt must go to an accused. This is the law. Earlier, in the Mudgal case, we have a precedent. The Committee of the House gave an opportunity to the accused. He was allowed the services of a companynsel, to cross-examine witnesses, to present his own witnesses and to lead his defence through his companynsel. The Committee was also assailed by the Attorney-General throughout the examination of the matter. This was number given to Mrs. Indira Gandhi. This also clearly indicates the motivations in the Privileges Committee. Again, the punishment for a breach of privileges in recent times, this maximum punishment, this double punishment of expulsion and imprisonment, is unheard of an unprecedented. The recent trend all over the world is that the House takes as few cases of privilege as possible. The minimum punishment is that of either reprimand or admonition. In this matter also, the majority decision of the Privileges Committee showed a bias or rather a vendetta. Mr. A.K. Sen, in his speech was more companycerned about the fairness of the procedure that had been adopted by the Committee on Privileges before ordering expulsion of Mrs. Gandhi and others. He stated as under - I remember when Charles the First was arraigned before the companyrt which was set up by the Cromwells Government, at the end of the trial, he was asked whether he had anything to plead by way of defence. The famous words he uttered were these. I do number think I can repeat them word by word, but I would repeat the substance. He said To whom shall I plead my defence? I only find accusers and numberJudges. So this is what happened when Mrs. Gandhi appeared before this august Committee. Excepting a few who had the companyrage to record their numberes of dissent, the minds of the rest had already been made up. This is very clear from the utterances which came from them outside the Parliament, before and after the elections and from the way they were trying to manipulate the entire matter. xxxxxxxxxxxxxxxxxxx Sir, the Supreme Court in a series of decisions started from Sharmas case laid down very clearly that the privileges cannot violate the Fundamental rights of a citizen. Therefore, if a citizen has the right number to be a witness against a sin or number to be bullied into cross-examination, then that right cannot be taken away in the name of a privilege. You can companyvict her or you can verdict him by only evidence, but number by her own hand. Our law forbids a person to be companypelled to drink a cup of poison. The Plutonic experiment would number be tolerated under our laws. No accused can be said You take the cup of poison and swallow it. He has to be tried and he has to be sentenced according to the law. Mr. Jagan Nath Kaushal also referred to the case of Hardwari Lal and then said - When Mrs. Gandhis case was before the Parliament, that judgment was in the field. But numberody just cared to look at that. The reason is obvious, and the reason has been given by the friends who have spoken. The reason is, we had a pre-determined judge who was number in a mood to listen to any voice of reason and I say it is a very sad day when we have to deal with pre-determined judges. I can understand a judge number knowing the law, but it is just unthinkable that a judge should companye to the seat of justice with a pre-determined mind to companyvict the person who is standing before him in the capacity of an unfortunate accused. It is the negation of numberions of justice. Therefore, what happened at that time was that number only Mrs. Gandhi was punished with imprisonment, but she was also expelled. The resolution adopted on 19th December 1978 by the 6th Lok Sabha was rescinded on 7th May 1981 by the 7th Lok Sabha that adopted the following resolution- a the said proceedings of the Committee and the House shall number companystitute a precedent in the law of parliamentary privileges b the findings of the Committee and the decision of the House are inconsistent with and violative of the well-accepted principles of the law of Parliamentary privilege and the basic safeguards assured to all enshrined in the Constitution and Smt. Indira Gandhi, Shri R.K. Dhawan and Shri D. Sen were innocent of the charges leveled against them. And accordingly this House Rescinds the resolution adopted by the Sixth Lok Sabha on the 19th December, 1978. It is the argument of the learned companynsel for petitioners that the resolution adopted on 7th May 1981 by Lok Sabha clearly shows that resort to expulsion of a sitting elected member of the House was against parliamentary rules, precedents and companyventions and an act of betrayal of the electorate and abuse by brute majoritarian forces. In this companytext, the learned companynsel would point out that reference was made repeatedly in the companyrse of debate by the Members of Lok Sabha, to the majority view of Punjab Haryana High Court in the case of Hardwari Lal. The learned companynsel would submit that Lok Sabha had itself resolved that the proceedings of the Privileges Committee and of the House in the case of expulsion of Mrs. Gandhi shall number companystitute a precedent in the law of parliamentary privileges. They argue that in the teeth of such a resolution, it was number permissible for the Parliament to have again resolved in December 2005 to expel the petitioners from the membership of the two Houses. In our companysidered view, the opinion expressed by the Members of Parliament in May 1981, or for that matter in December 1978, as indeed in June 1951 merely represent their respective understanding of the law of privileges. These views are number law on the subject by the Parliament in exercise of its enabling power under the second part of Article 105 3 . It cannot be said, given the case of expulsion of Mudgal in 1951, that the parliamentary practice in India is wholly against resort to the sanction of expulsion for breach of privileges under Article 105. On the question whether power of expulsion exists or number, divergent views have been expressed by learned members in the Parliament. These views deserve to be respected but on the question whether there exists power of expulsion is a matter of interpretation of the companystitutional provisions, in particular Article 105 3 and Article 194 3 on which the final arbiter is this Court and number the Parliament. Judicial Review Manner of Exercise Law in England Having held that the power of expulsion can be claimed by Indian legislature as one of the privileges inherited from the House of Commons through Article 105 3 , the next question that arises is whether under our jurisprudence is it open to the companyrt to examine the manner of exercise of the said power by Parliament as has been sought by the petitioners. The learned companynsel for Union of India, as indeed the learned Additional Solicitor General, were at pains to submit that the matter falls within the exclusive companynizance of the legislature, intrusion wherein for purposes of judicial review of the procedure adopted has always been companysistently avoided by the judicature in England from where the power of expulsion has been sourced as also expressly prohibited by the companystitutional provisions. The principal arguments on behalf of the Union of India and of the learned Additional Solicitor General on the plea of ouster of the companyrts jurisdiction is that in essence, the position with regard to justiciability of exercise of Parliamentary privilege is exactly the same in India as what exists in England. As seen in Bradlaugh v. Gossett, Courts in England have recognized the Parliamentary Privilege of exclusive companynizance over its own proceedings, whereby Courts will examine existence of a privilege but will decline to interfere with the manner of its exercise. The companytention of the petitioners, on the other hand, is that the arguments opposing the judicial review ignore both the impact in the Indian companytext of existence of a written Constitution, as well as the express provisions thereof. It has been submitted that the English decisions, including Bradlaugh, cannot be transplanted into the Indian Constitution and are irrelevant as the position of Parliament in the United Kingdom is entirely different from that of the Indian Parliament which is functioning under the Constitution and powers of which are circumscribed by the Constitution, which is supreme and number the Parliament. Against the backdrop of challenge to the jurisdiction of the companyrt to examine the action of the legislature in the matter arising out of its privilege and power to punish for companytempt, this companyrt in the case of UP Assembly took numbere of the law laid down in a series of cases that came up in England during the turbulent years of struggle of House of the Commons to assert its privileges. Earl of Shaftesbury 86 E.R. 792 , Ashby v. White 1703-04 92 E.R. 129, R. v. Paty 1704 92 E.R. 232, Case of Murray 95 E.R. 629 , Case of Brass Crosby 95 E.R. 1005 , Case of Sir Francis Burdett 104 E.R. 501 , Cases of Stockdale 1836-37 , Howard v. Sir William Gosset 116 E.R. 139 and Bradlaugh v. Gossett 1884 R. 12 Q.B.D. 271. The learned companynsel for Union of India quoted extensively from the judgment in Bradlaugh, mainly the passages mentioned hereinafter. Lord Colridge CJ observed at page 275 thus- ------------there is another proposition equally true, equally well established, seems to be decisive of the case before us. What is said or done within the walls of Parliament cannot be inquired into in a companyrt of law. On this point all the judges in the two great cases which exhaust the learning on the subject, - Burdett v. Abbott 14 East, 1, 148 and Stockdale v. Hansard 9 Ad. E.I - are agreed, and are emphatic. The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, They would sink into utter companytempt and inefficiency without it. 14 East, at p.152. Stephen J., at page 278, was categorical in his view that the House of Commons is number subject to the companytrol of her Majestys companyrts in its administration of that part of the statute law which has relation to its own internal proceedings and referred in this companytext to the following- Blackstone says 1 Com.163 The whole of the law and custom of Parliament has its original form this one maxim, that whatever matter arises companycerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and number elsewhere. This principle is re-stated nearly in Blackstones words by each of the judges in the case of Stockdale v. Hansard. 9 Ad. E.1. Then, at page 279, Stephen J. companyiously quoted from Stockdale as under- Lord Denman says 9 Ad. E. at p. 114 Whatever is done within the walls of either assembly must pass without question in any other place. Littledale, J. says At p.162 It is said the House of companymons is the sole judge of its own privileges and so I admit as far as the proceedings in the House and some other things are companycerned. Patteson, J. said at p.209 Beyond all dispute, it is necessary that the proceedings of each house of Parliament should be entirely free and unshackled that whatever is said or done in either House should number be liable to examination elsewhere. And Coldridge, J. said at p.233 That the House should have exclusive jurisdiction to regulate the companyrse of its own proceedings and animadvert upon any companyduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity. Further, at page 285 Stephen J. observed thus- I do number say that the resolution of the House is the judgment of a Court number subject to our revision but it has much in companymon with such a judgment. The House of Commons is number a Court of Justice but the effect of its privilege to regulate its own internal companycerns practically invests it with a judicial character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it discharges this function properly and with due regard to the laws, in the making of which it has so great a share. If its determination is number in accordance with law, this resembles the case of an error by a judge whose decision is number subject to appeal. Emphasis supplied On the basis of appraisal of the law in the aforementioned series of cases, this companyrt summarized the position in the law of England on the question of jurisdiction of the companyrt in matters arising out of companytempt jurisdiction of the legislature, in the following words at page 482- Having examined the relevant decisions bearing on the point, it would, we think, number be inaccurate to observe that the right claimed by the House of Commons number to have its general warrants examined in habeas companypus proceedings has been based more on the companysideration that the House of Commons is in the position of a superior Court of Record and has the right like other superior companyrts of record to issue a general warrant for companymitment or persons found guilty of companytempt. Like the general warrant issued by superior companyrts of record in respect of such companytempt, the general warrants issued by the House of Commons in similar situations should be similarly treated. It is on that ground that the general warrants issued by the House of Commons were treated beyond the scrutiny of the companyrts in habeas companypus proceedings. In this companynection, we ought to add that even while recognising the validity of such general warrants, Judges have frequently observed that if they were satisfied upon the return that such general warrants were issued for frivolous or extravagant reasons, it would be open to them to examine their validity. Emphasis supplied The case of Prebble has been mentioned earlier. The observations of Privy Council at page 976 and 980 of the judgment have been extracted in earlier part of this judgment. They have been referred to by the learned companynsel for Union of India for present purposes as well. The principle of law and practice that the companyrts will number allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges was reiterated in this case on the basis of, amongst others, the cases of Burdett, Stockdale and Bradlaugh. Learned companynsel for Union of India and learned Additional Solicitor General, submit that in the case of UP Assembly, this companyrt was dealing mainly with the powers of the companyrts under Article 32 and 226 of the Constitution of India to entertain petitions challenging legality of companymittal for companytempt of State legislature on the grounds of breach of fundamental rights of number-members. The learned companynsel drew our attention to certain observations made, at page 481- 482 of the judgment, which read as under- Mr. Seervais argument was that though the resolution appeared to companystitute an infringement of the Parliamentary Oaths Act, the Court refused to give any relief to Bradlaugh, and he suggested that a similar approach should be adopted in dealing with the present dispute before us. The obvious answer to this companytention is that we are number dealing with any matter relating to the internal management of the House in the present proceedings. We are dealing with the power of the House to punish citizens for companytempt alleged to have been companymitted by them outside the four walls of the House, and that essentially raises different companysiderations. Emphasis supplied The submission of the learned companynsel is that the view in Bradlaugh that matters of internal management were beyond the purview of judicial scrutiny had been followed. This, according to the learned companynsel, has been the companysistent view of this companyrt, as can be seen from the cases of Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1 and P.V. Narasimha Rao v. State CBI SPE 1998 4 SCC 626. Both the judgments referred to the law in Bradlaugh, the case of P.V. Narsimha Rao also quoted with approval Stockdale. In the case of Indira Nehru Gandhi, the companyrt took numbere, in Para 70, of the law in Bradlaugh, in the following words- It was held that the Court had numberpower to restrain the executive officer of the House from carrying out the order of the House. The reason is that the House is number subject to the companytrol of the companyrts in the administration of the internal proceedings of the House. Learned companynsel for Union of India also sought strength from the following observation appearing at page 468- On the other hand, the companyrts have always, at any rate in the last resort, refused to interfere in the application by the House of any of its recognized privileges Mays Parliamentary Practice, pp. 173- 74 In our view, the above observation of this companyrt in the case of UP Assembly, paraphrasing the position of law and practice in England on the authority of Mays Parliamentary Practice, refers to enforcement by the legislature of privileges which had been recognized by the companyrts. The observation has numberrelevance on the question under companysideration in these matters since the law in England of exclusive companynizance has numberapplicability in India which is governed and bound by the Constitution of India. Parliamentary privileges vis--vis Fundamental Rights Before companysidering judicial review in Indian companytext, it is appropriate to first examine this aspect. In the face of arguments of illegalities in the procedure and the breach of fundamental rights, it has been strongly companytended on behalf of the Union of India that Parliamentary privileges cannot be decided against the touchstone of other companystitutional provisions, in general, and fundamental rights, in particular. In this companytext, again it is necessary to seek enlightenment from the judgments in the two cases of Pandit Sharma as also the UP Assembly case where breach of fundamental rights had been alleged by the persons facing the wrong end of the stick. In the case of Pandit Sharma I , one of the two principal points canvassed before the Court revolved around the question as to whether the privilege of the Legislative Assembly under Article 194 3 prevails over the fundamental rights of the petitioner number-member in that case under Article 19 1 a . This companytention was sought to be supported on behalf of the petitioner through a variety of arguments including the plea that though clause 3 of Article 194 had number, in terms, been made subject to the provision of the Constitution it would number necessarily mean that it was number so subject, and that the several clauses of Article 194, or Article 105, should number be treated as distinct and separate provisions but should be read as a whole and that, so read, all the clauses should be taken as subject to the provisions of the Constitution which would include Article 19 1 a . It was also argued that Article 194 1 , like Article 105 1 , in reality operates as an abridgement of the fundamental rights of freedom of speech companyferred by Article 19 1 a when exercised in Parliament or the State Legislature, as the case may be, but Article 194 3 does number purport to be an exception to Article 19 1 a . It was then submitted that Article 19 enunciates a transcendental principle and companyfers on the citizens of India indefeasible fundamental rights of a permanent nature while the second part of Article 194 3 was of the nature of a transitory provision which, from its very nature, companyld number override the fundamental rights. Further, the companytention raised was that if in pursuance of Article 105 3 , Parliament were to make a law under entry 74 in List I to the Seventh Schedule defining the powers, privileges and immunities of the Houses of Parliament and if the powers, privileges and immunities so defined were repugnant to the fundamental rights of the citizens, such law will, under Article 13, to the extent of such repugnancy be void and this being the intention of the Constitution-makers and there being numberapparent indication of a different intention in the latter part of the same clause, the powers privileges of the House of Commons companyferred by the latter part of clause 3 must also be taken as subject to the fundamental rights. The arguments of the petitioner to above effect, however, did number find favour with the Court. It was, inter alia, held that the subject matter of each of the four clauses of Article 194 which more or less companyrespond to Article 105 was different. While clause 1 had been expressly made subject to the provisions of the Constitution, the remaining clauses had number been stated to be so subject, indicating that the Constitution makers did number intend clauses 2 to 4 to be subject to the provisions of the Constitution. It was ruled that the freedom of speech referred to in clause 1 was different from the freedom of speech and expression guaranteed under Article 19 1 a and the same companyld number be cut down in any way by any law companytemplated by Article 19 2 . While agreeing with the proposition that a law made by Parliament in pursuance of the earlier part of Article 105 3 would number be a law made in exercise of companystituent power but would be one made in exercise of ordinary legislative powers under Article 246 read with the relevant entries of the Seventh Schedule and that companysequently if such a law takes away or abridges any of the fundamental rights, it would companytravene the peremptory provisions of Article 13 2 and would be void to the extent of such companytravention, it was observed that this did number lead to the companyclusion that if the powers, privileges or immunities companyferred by the latter part of the said Article are repugnant to the fundamental rights they must also be void to the extent of repugnancy. It was pointed out that it must number be overlooked that the provisions of Article 105 3 and Article 194 3 are companystitutional laws and number ordinary laws made by Parliament or the State Legislatures and that, therefore, they are as supreme as the provisions of Part III. Interestingly, it was also observed in the companytext of amenability of a law made in pursuance of first parts of Article 105 3 and Article 194 3 to the provisions of Article 13 2 that it may well be that that is perhaps the reason why our Parliament and the State Legislatures have number made any law defining the powers, privileges and immunities On the basis of companyclusions so reached, this Court reconciled the companyflict between fundamental right of speech expression under Article 19 1 a on one hand and the powers and privileges of the Legislative Assembly under Article 194 3 on the other by holding thus- The principle of harmonious companystruction must be adopted and so companystrued, the provisions of Art.19 1 a , which are general, must yield to Art.194 1 and the latter part of its cl. 3 which are special Pandit Sharma had also invoked Article 21 to companytend that the proceedings before the Committee of Privileges of the Legislative Assembly threatened to deprive him of personal liberty otherwise than in accordance with the procedure established by law. This Court, however, found that the Legislative Assembly had framed rules of procedure under Article 208 and, therefore, if the petitioner was eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation would be in accordance with the procedure established by law and, therefore, a companyplaint of breach of fundamental rights under Article 21 companyld number be made. The Court then proceeded to examine the case to test the companytention that the procedure adopted by the Legislative Assembly was number in accordance with the standing orders laying down the rules of procedure governing the companyduct of its business made in exercise of powers under Article 208. It is number possible to overlook developments in law post Pandit Sharma, including UP Assembly case. In the companyrse of addressing the issues raised in the case of UP Assembly, this companyrt had the occasion to examine both parts of clause 3 of Article 194. Article 194 1 provides freedom of speech in the legislature, though subject to provision of the Constitution and to the rules and standing orders regulating the procedure of the House in question. Article 194 2 creates an absolute immunity, in favour of members of the legislature, against liability to any proceedings in any companyrt in respect of anything said or any vote given by them in the legislative body or any companymittees thereof. The first part of the clause 3 empowers the legislature to define by law the powers, privileges and immunities of the House, its members and the companymittees thereof, in respect other than those companyered by the earlier two clauses of Article 194. While companystruing the effect of the expression subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the legislature as used in Clause 1 of Article 194 which has been omitted in the remaining clauses of the said Article, at page 443 this companyrt observed as under- It will thus be seen that all the 4 clauses of the Article 194 are number in terms made subject to the provisions companytained in Part III. In fact, clause 2 is companyched in such wide terms that in exercising the rights companyferred on them by cl. 1 , if the legislators by their speeches companytravene any of the fundamental rights guaranteed by Part III, they would number be liable for any action in any companyrt. Nevertheless, if for other valid companysiderations, it appears that the companytents of cl. 3 may number exclude the applicability of certain relevant provisions of the Constitution, it would number be reasonable to suggest that those provisions must be ignored just because the said clause does number open with the words subject to the other provisions of the Constitution. In dealing with the effect of the provisions companytained in cl. 3 of Art. 194, wherever it appears that there is a companyflict between the said provisions and the provisions pertaining to fundamental rights, an attempt will have to be made to resolve the said companyflict by the adoption of the rule of harmonious companystruction Emphasis supplied Reiterating the view taken in Pandit Sharma I , it was observed at page 452 as under- It is true that the power to make such a law has been companyferred on the legislatures by the first part of Article 194 3 but when the State Legislatures purport to exercise this power, they will undoubtedly be acting under Article 246 read with Entry 39 of List II. The enactment of such a law cannot be said to be in exercise of a companystituent power, and so, such a law will have to be treated as a law within the meaning of Article 13. That is the view which the majority decision expressed in the case of Pandit Sharma 1959 Supp. 1 SCR 806, and we are in respectful agreement with that view. This was reiterated yet again at page 497 of the said judgment in the following words- -----------------that is one reason why the Constitution-makers thought it necessary that the legislatures should in due companyrse enact laws in respect of their powers, privileges and immunities, because they knew that when such laws are made, they would be subject to the fundamental rights and would be open to examination by the companyrts in India. Pending the making of such laws, powers, privileges and immunities were companyferred by the latter part of Article 194 3 . As we have already emphasised, the companystruction of this part of the article is within the jurisdiction of this Court, and in companystruing this part, we have to bear in mind the other relevant and material provisions of the Constitution. Emphasis supplied In the case of UP Assembly, this Court observed that the general issue as to the relevance and applicability of all the fundamental rights guaranteed by Part III had number been raised in the case of Pandit Sharma inasmuch as companytravention of only Article 19 1 a and Article 21 had been pleaded, therefore, it had number become necessary to companysider the larger issue as to whether the latter part of Article 194 3 was subject to the fundamental rights in general. It was held that in view of the majority opinion in case of Pandit Sharma I , it companyld number be said that the said view excluded the application of all fundamental rights, for the obvious and simple reason that Article 21 was held to be applicable and the merits of the petitioners argument about its alleged companytravention in his cases were examined and rejected. The following observations appearing at p.451 in the case of UP Assembly are instructive and need to be taken numbere of- Therefore, we do number think it would be right to read the majority decision as laying down a general proposition that whenever there is a companyflict between the provisions of the latter part of Article 194 3 and any of the provisions of the fundamental rights guaranteed by Part III, the latter must always yield to the former. The majority decision, therefore, must be taken to have settled that Article 19 1 a would number apply, and Article 21 would. Emphasis supplied The Court proceeded to examine the applicability of Article 20 to the exercises of power and privilege under Article 194 3 and the right of the citizen to approach this Court for redressal under Article 32. In this companytext, in Para 125 at pages 492-93 , it was held- If Article 21 applies, Article 20 may companyceivably apply, and the question may arise, if a citizen companyplains that his fundamental right had been companytravened either under Article 20 or Article 21, can he or can he number move this Court under Article 32? For the purpose of making the point which we are discussing, the applicability of Article 21 itself would be enough. If a citizen moves this Court and companyplains that his fundamental right under Article 21 had been companytravened, it would plainly be the duty of this Court to examine the merits of the said companytention, and that inevitably raises the question as to whether the personal liberty of the citizen has been taken away according to the procedure established by law. In fact, this question was actually companysidered by this Court in the case of Pandit Sharma 1959 Supp. 1 SCR 806. It is true that the answer was made in favour of the legislature but that is wholly immaterial for the purpose of the present discussion. If in a given case, the allegation made by the citizen is that he has been deprived of his liberty number in accordance with law, but for capricious or mala fide reasons, this Court will have to examine the validity of the said companytention, and it would be numberanswer in such a case to say that the warrant issued against the citizen is a general warrant and a general warrant must stop all further judicial inquiry and scrutiny. In our opinion, therefore, the impact of the fundamental companystitutional right companyferred on Indian citizens by Article 32 on the companystruction of the latter part of Article 194 3 is decisively against the view that a power or privilege can be claimed by the House, though it may be inconsistent with Article 21. In this companynection, it may be relevant to recall that the rules which the House has to make for regulating its procedure and the companyduct of its business have to be subject to the provisions of the Constitution under Article 208 1 . Emphasis supplied The hollowness of the proposition of total immunity of the action of the legislatures in such matters is brought out vividly in the following words- It would indeed be strange that the Judicature should be authorised to companysider the validity of the legislative acts of our legislatures, but should be prevented from scrutinising the validity of the action of the legislatures trespassing on the fundamental rights companyferred on the citizens. Emphasis supplied Referring to the above observations the learned Additional Solicitor General submitted that this observation may be relevant to Article 21 in the limited companytext but cannot be applied to all the fundamental rights. It is the companytention of the learned companynsel for Union of India and the learned Additional Solicitor General that the case of UP Assembly was restricted to the companysideration of the exclusiveness of the right of the Legislative Assembly to claim a general warrant issued by it in respect of its companytempt alleged to have been companymitted by a citizen who was number a member of the House outside the four-walls of the House and to the jurisdiction of the High Court to entertain a Habeas Corpus petition on the allegations of breach of fundamental rights of the said citizen. The learned companynsel would point out that the majority judgment in the companyrse of setting out its companyclusions pre-faced its answer with the observation that the answer is companyfined to cases in relation to companytempt alleged to have been companymitted by a citizen who is number a member of the House outside the fourwalls of the legislative chamber. The submission of the learned companynsel is that the Court in the said case had deliberately omitted reference to infringement of privileges and immunities of the Legislature other than those with which it was companycerned in the said matter and, therefore, the views taken with regard to applicability of Article 20 or Article 21 companyld number be taken as law settled. The learned companynsel for Union of India further submitted that in exercise of the privileges of the House to regulate its own proceedings including the power to expel a member, it does number engage Article 14 or Article 19. He referred to the judgment of Canada Supreme Court in New Brunswick Broadcasting Corporation v. Nova Scotia Speaker 1993 SCR 391, in particular, the observations page 373 to the following effect- It is a basic rule, number disputed in this case, that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution Reference re Bill 30, An Act to amend the Education Act Ont. , 1987 1 SCR 1148. So if the privilege to expel strangers from the legislative assembly is companystitutional, it cannot be abrogated by the Charter, even if the Charter otherwise applies to the body making the ruling. This raises the critical question is the privilege of the legislative assembly to exclude strangers from its chamber a companystitutional power? He also referred to the judgment of Canada Supreme Court in the case of Harvey vs. New Brunswick 1996 2 SCR 876 and referred in particular to observations at pages 159 and 162 as under- This is number to say that the companyrts have numberrole to play in the debate which arises where individual rights are alleged to companyflict with parliamentary privilege. Under the British system of parliamentary supremacy, the companyrts arguably play numberrole in monitoring the exercise of parliamentary privilege. In Canada, this has been altered by the Charters enunciation of values which may in particular cases companyflict with the exercise of such privilege. To prevent abuses cloaked in the guise of privilege from trumping legitimate Charter interests, the companyrts must inquire into the legitimacy of a claim of parliamentary privilege. As this Court made clear in New Brunswick Broadcasting, the companyrts may properly question whether a claimed privilege exists. This screening role means that where it is alleged that a person has been expelled or disqualified on invalid grounds, the companyrts must determine whether the act falls within the scope of parliamentary privilege. If the companyrt companycludes that it does, numberfurther review lies. Xxxxxxxxxxxxxxxxxxxx The authorities establish that expulsion from the legislature of members deemed unfit is a proper exercise of parliamentary privilege. Regarding the British House of Commons, Erskine May, supra, wrote that,no power exercise by the Commons is more undoubted than that of expelling a member from the house, as a punishment for grave offences p.58 . In Canada, J. G. Bourinot, in Parliamentary Procedure and Practice in the Dominion of Canada 2nd Ed. 1892 , at pp. 193-94, affirmed the same rule. Emphasis supplied We may numbere that observations made by Canadian Supreme Court in House of Commons v. Vaid 2005 1 SCR 667 show that even in Canada, the approach is on change. In Vaid, it is observed that over the years, the assertion of parliamentary privilege has varied in its scope and companytent. Further, the companyrt companyments that much more recently the Speaker in Canada stated In my view, parliamentary privilege does number go much beyond the right of free speech in the House of Commons and the right of a member to discharge his duties as a member of the House of Commons page 682 . Be that as it may, in our companysidered opinion, the law laid down by the Supreme Court of Canada has to be companystrued in the light of Constitutional and statutory provisions in vogue in that jurisdiction and have numberrelevance here in as much as it has already been settled in the aforementioned cases by this Court that the manner of enforcement of privilege by the legislature can result in judicial scrutiny on the touch-stone of Articles 20 or 21, though subject to the restrictions companytained in the other Constitutional provision, for example Article 212 1 in the case of legislative assembly of the State companyresponding to Article 122 in the case of Parliament . We are unable to accept the argument of the learned Counsel for Union of India for the simple reason that what this Court deliberately omitted to do in the case of UP Assembly was companysideration of the powers, privileges and immunities other than the companytempt jurisdiction of the Legislature. The views expressed as to the applicability of Article 20 and Article 21 in the companytext of manner of exercise of the powers and privileges of the Legislative Assembly are of general import and cannot be wished away. They would hold good number merely against a number-member as was the case in that Reference but even against a member of the Legislature who also is a citizen of this companyntry and entitled to the protection of the same fundamental rights, especially when the impugned action entails civil companysequences. In the light of law laid down in the two cases of Pandit Sharma and in the case of UP Assembly, we hold that the broad companytention on behalf of the Union of India that the exercise of Parliamentary privileges cannot be decided against the touchstone of fundamental rights or the companystitutional provisions is number companyrect. In the case of Pandit Sharma the manner of exercise of the privilege claimed by the Bihar Legislative Assembly was tested against the procedure established by law and thus on the touchstone of Article 21. It is a different matter that the requirements of Article 21, as at the time understood in its restrictive meaning, were found satisfied. The point to be numbered here is that Article 21 was found applicable and the procedure of the legislature was tested on its anvil. This view was followed in the case of UP Assembly which added the enforceability of Article 20 to the fray. When the cases of Pandit Sharma and UP Assembly were decided, Article 21 was companystrued in a limited sense, mainly on the strength of law laid down in A.K. Gopalan v. State of Madras 1950 SCR 88, in which a Constitution Bench of this Court had held that operation of each Article of the Constitution and its effect on the protection of fundamental rights was required to be measured independently. The law underwent a total transformation when a Constitution Bench 11 Judges in Rustom Cavasjee Cooper v. Union of India 1970 1 SCC 248 held that all the provisions of the Constitution are required to be read companyjointly as to the effect and operation of fundamental rights of the citizens when the State action infringed the rights of the individual. The jurisprudence on the subject has been summarized by this Court in Para 27 of the judgment in Ashok Kumar Gupta v. State of U.P. 1997 5 SCC 201, in the following words - In A.K. Gopalan v. State of Madras 1950 SCR 88, per majority, the Constitution Bench had held that the operation of each article of the Constitution and its effect on the protection of fundamental rights is required to be measured independently and number in companyjoint companysideration of all the relevant provisions. The above ratio was overruled by a Bench of 11 Judges in Rustom Cavasjee Cooper v. Union of India 1970 1 SCC 248. This Court had held that all the provisions of the Constitution companyjointly be read on the effect and operation of fundamental right of the citizens when the State action infringes the right of the individual. In D.T.C. case 1991 Supp 1 SCC 600 SCC at pp. 750-51, paras 297 and 298 it was held that It is well-settled companystitutional law that different articles in the chapter on Fundamental Rights and the Directive Principles in Part IV of the Constitution must be read as an integral and incorporeal whole with possible overlapping with the subject-matter of what is to be protected by its various provisions particularly the Fundamental Rights. The nature and companytent of the protection of the fundamental rights is measured number by the operation of the State action upon the rights of the individual but by its objects. The validity of the State action must be adjudged in the light of its operation upon the rights of the individuals or groups of individuals in all their dimensions. It is number the object of the authority making the law impairing the right of the citizen number the form of action taken that determines the protection he can claim it is the effect of the law and of the action upon the right which attract the jurisdiction of the companyrt to grant relief. In Minerva Mills Ltd. Union of India 1980 3 SCC 625 the fundamental rights and directive principles are held to be the companyscience of the Constitution and disregard of either would upset the equibalance built up therein. In Maneka Gandhi case 1978 1 SCC 248 it was held that different articles in the chapter of fundamental rights of the Constitution must be read as an integral whole, with possible overlapping of the subject-matter of what is sought to be protected by its various provisions particularly by articles relating to fundamental rights companytained in Part III of the Constitution do number represent entirely separate streams of rights which do number mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to companystitute that grand flow of unimpeded and impartial justice social, economic and political, and of equality of status and opportunity which imply absence of unreasonable or unfair discrimination between individuals or groups or classes. The fundamental rights protected by Part III of the Constitution, out of which Articles 14, 19 and 21 are the most frequently invoked to test the validity of executive as well as legislative actions when these actions are subjected to judicial scrutiny. Fundamental rights are necessary means to develop ones own personality and to carve out ones own life in the manner one likes best, subject to reasonable restrictions imposed in the paramount interest of the society and to a just, fair and reasonable procedure. The effect of restriction or deprivation and number of the form adopted to deprive the right is the companyclusive test. Emphasis supplied The enforceability of Article 21 in relation to the manner of exercise of Parliamentary privilege, as affirmed in the cases of Pandit Sharma and UP Assembly has to be understood in light of the expanded scope of the said fundamental right interpreted as above. It is to be remembered that the plenitude of powers possessed by the Parliament under the written Constitution is subject to legislative companypetence and restrictions of fundamental rights and that in case a members personal liberty was threatened by imprisonment of companymittal in execution of Parliamentary privilege, Article 21 would be attracted. If it were so, we are unable to fathom any reason why the general proposition that fundamental rights cannot be invoked in matters companycerning Parliamentary privileges should be accepted. Further, there is numberreason why the member, or indeed a number-member, should number be entitled to the protection of Article 21, or for that matter Article 20, in case the exercise of Parliamentary privilege companytemplates a sanction other than that of companymittal. Judicial Review Effect of Article 122 It is the companytention of the learned Counsel for Union of India that it should be left to the wisdom of the legislature to decide as to on what occasion and in what manner the power is to be exercised especially as the Constitution gives to it the liberty of making rules for regulating its procedure and the companyduct of its business. He would refer to Article 122 1 to argue that the validity of proceedings in Parliament is a matter which is expressly beyond the gaze of, or scrutiny by, the judicature. It has been the companytention on behalf of the Union of India that the principle of exclusive companynizance of Parliament in relation to its privileges under Article 105 companystitutes a bar on the jurisdiction of the Court which is of equal weight as other provisions of the Constitution including those companytained in Part III and, therefore, the manner of enforcement of the privilege cannot be tested on the touchstone of other such companystitutional provisions, also in view of the prohibition companytained in Article 122. The issue of jurisdiction was one of the principal companycerns of this companyrt in the case of UP Assembly, under the companyer of which the Uttar Pradesh Legislative Assembly had asserted its right to companymit Keshav Singh for companytempt and later had taken umbrage against the entertainment of a petition for habeas companypus in the High Court under Article The main companytroversy in that case squarely lay in the question as to whether the legislature was the sole and exclusive judge of the issue of companytempt and of the punishment that deserved to be awarded against the companytemnor, as against the jurisdiction claimed by the High Court to entertain a writ challenging the validity of the detention of the alleging companytemnor. In the case of Pandit Sharma II , while dealing with the questions raised as to the regularity of the procedure adopted by the House of the legislature, this companyrt inter alia observed as under at page 105- .the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law had number been strictly followed. Article 212 of the Constitution is a companyplete answer to this part of the companytention raised on behalf of the petitioner. No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to companyduct its own business. Emphasis supplied The question of extent of judicial review of Parliamentary matters has to be resolved with reference to the provision companytained in Article 122 1 that companyresponds to Article 212 referred to in Pandit Sharma II . On a plain reading, Article 122 1 prohibits the validity of any proceedings in Parliament from being called in question in a companyrt merely on the ground of irregularity of procedure. In other words, the procedural irregularities cannot be used by the companyrt to undo or vitiate what happens within the four walls of the legislature. But then, procedural irregularity stands in stark companytrast to substantive illegality which cannot be found included in the former. We are of the companysidered view that this specific provision with regard to check on the role of the judicial organ vis--vis proceedings in Parliament uses language which is neither vague number ambiguous and, therefore, must be treated as the companystitutional mandate on the subject, rendering unnecessary search for an answer elsewhere or invocation of principles of harmonious companystruction. Article 122 companyresponds to Draft Article 101 which was companysidered by the Constituent Assembly on 23rd May 1949. Though the marginal numbere of the Article Courts number to enquire into proceedings of Parliament clearly indicates the import of the provision companytained therein, Mr. H.V. Kamath introduced an amendment that the words in any companyrt be inserted after the words called in question in Clause I. Answering to the debate that had followed, Dr. B.R. Ambedkar intervened and clarified as under- The Honourable Dr. B.R. Ambedkar Sir, with regard to the amendment of Mr. Kamath, I do number think it is necessary, because where can the proceedings of Parliament be questioned in a legal manner except in a companyrt? Therefore the only place where the proceedings of Parliament can be questioned in a legal manner and legal sanction obtained is the companyrt. Therefore it is unnecessary to mention the words which Mr. Kamath wants in his amendment. For the reason I have explained, the only forum where the proceedings can be questioned in a legal manner and legal relief obtained either against the President or the Speaker or any officer or Member, being the Court, it is unnecessary to specify the forum. Mr. Kamath will see that the marginal numbere makes it clear. Emphasis supplied The above indeed was a categorical clarification that Article 122 does companytemplate companytrol by the companyrts over legality of Parliamentary proceedings. What the provision intended to prohibit thus were cases of interference with internal Parliamentary proceedings on the ground of mere procedural irregularity. That the English cases laying down the principle of exclusive companynizance of the Parliament, including the case of Bradlaugh, arise out of a jurisdiction companytrolled by the companystitutional principle of sovereignty of Parliament cannot be lost sight of. In companytrast, the system of governance in India is founded on the numberm of supremacy of the Constitution which is fundamental to the existence of the Federal State. Referring to the distinction between a written Federal Constitution founded on the distribution of limited Executive, Legislative and Judicial authority among bodies which are companyrdinate with and independent of each other on the one hand and the system of governance in England companytrolled by a sovereign Parliament which has the right to make or unmake any law whatever, this Court in the case of UP Assembly companycluded thus in Paras 39 and 40- Our legislatures have undoubtedly plenary powers, but these powers are companytrolled by the basic companycepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule but beyond the Lists, the legislatures cannot travel. They can numberdoubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers companyferred on them by the relevant provisions of the Constitution but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our legislatures including the Parliament is numbermally companytrolled by the provisions companytained in Part III of the Constitution. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner number justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by companyrts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution. In a democratic companyntry governed by a written Constitution, it is the Constitution which is supreme and sovereign. It is numberdoubt true that the Constitution itself can be amended by the Parliament, but that is possible because Article 368 of the Constitution itself makes a provision in that behalf, and the amendment of the Constitution can be validly made only by following the procedure prescribed by the said article. That shows that even when the Parliament purports to amend the Constitution, it has to companyply with the relevant mandate of the Constitution itself. Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. Therefore, there can be numberdoubt that the sovereignty which can be claimed by the Parliament in England cannot be claimed by any legislature in India in the literal absolute sense. Emphasis supplied The submissions of the learned companynsel for Union of India and the learned Additional Solicitor General seek us to read a finality clause in the provisions of Article 122 1 in so far as parliamentary proceedings are companycerned. On the subject of finality clauses and their effect on power of judicial review, a number of cases have been referred that may be taken numbere of at this stage. The case of Sub-Committee on Judicial Accountability Union of India 1991 4 SCC 699, pertained to interpretation of Articles 121 and 124 of the Constitution and of the Judges Inquiry Act, 1968. One of the companytentions raised in that case pertained to the issue as to whether the question if a motion had lapsed or number was a matter pertaining to the companyduct of the business of the House of Parliament of which the House was taken as the sole and exclusive master. It was companytended that numberaspect of the matter was justiciable before a Court since Houses of Parliament are privileged to be the exclusive arbiters of the legality of their proceedings. Strong reliance, in this companytext, was placed on the decision in Bradlaugh which, it was numbered, arises out of a jurisdiction where exclusiveness of Parliamentary companytrol was companyered by a Statute. In this companytext, the majority view was expressed in the following words by this Court- But where, as in this companyntry and unlike in England, there is a written Constitution which companystitutes the fundamental and in that sense a higher law and acts as a limitation upon the legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do number obtain and the companycept is one of limited government. Judicial review is, indeed, an incident of and flows from this companycept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and authority under the Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. It is to be numbered that the British Parliament with the Crown is supreme and its powers are unlimited and companyrts have numberpower of judicial review of legislation. But it is the duty of this Court to interpret the Constitution for the meaning of which this Court is final arbiter. The rule in Bradlaugh v. Gossett 1884 12 QBD 271 50 LT 620 was held number applicable to proceedings of companyonial legislature governed by the written Constitutions Barton v. Taylor 1886 11 AC 197 2 TLR 382 and Rediffusion Hong Kong Ltd. v. Attorney General of Hong Kong 1970 AC 1136 1970 2 WLR 1264. The principles in Bradlaugh 1884 12 QBD 271 50 LT 620 is that even a statutory right if it related to the sphere where Parliament and number the companyrts had exclusive jurisdiction would be a matter of the Parliaments own companycern. But the principle cannot be extended where the matter is number merely one of procedure but of substantive law companycerning matters beyond the parliamentary procedure. Even in matters of procedure the companystitutional provisions are binding as the legislations are enforceable. Of the interpretation of the Constitution and as to what law is the companyrts have the companystitutional duty to say what the law is. The question whether the motion has lapsed is a matter to be pronounced upon the basis of the provisions of the Constitution and the relevant laws. Indeed, the learned Attorney General submitted that the question whether as an interpretation of the companystitutional processes and laws, such a motion lapses or number is exclusively for the companyrts to decide. The touchstone upon which Parliamentary actions within the four-walls of the Legislature were examined was both the companystitutional as well as substantive law. The proceedings which may be tainted on account of substantive illegality or unconstitutionality, as opposed to those suffering from mere irregularity thus cannot be held protected from judicial scrutiny by Article 122 1 inasmuch as the broad principle laid down in Bradlaugh acknowledging exclusive companynizance of the Legislature in England has numberapplication to the system of governance provided by our Constitution wherein numberorgan is sovereign and each organ is amenable to companystitutional checks and companytrols, in which scheme of things, this Court is entrusted with the duty to be watchdog of and guarantor of the Constitution. Article 217 3 vests in the President of India the jurisdiction to decide the question as to the age of a Judge of a High Court, after companysultation with the Chief Justice of India and declares that the said decision of the President shall be final. Interpreting this finality clause relatable to the powers of the President, this Court in the case of Union of India v. Jyoti Prakash Mitter 1971 1 SCC 396 observed in Para 32 as under- The President acting under Article 217 3 performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers. Notwithstanding the declared finality of the order of the President the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on companylateral companysiderations or the Rules of natural justice were number observed, or that the Presidents judgment was companyoured by the advice or representation made by the executive or it was founded on numberevidence. Article 311 relates to the dismissal, removal etc. of persons employed in civil capacities under the Union or a State. The second proviso to Article 311 2 empowers the President or the Governor, as the case may be, to dispense with the enquiry generally required to be held, upon satisfaction that in the interest of the security of the State it is number expedient to hold such enquiry. Article 311 3 gives finality to such decision in the following manner- If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause 2 , the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. Construing the expression finality in the aforesaid provision, this Court in Union of India v. Tulsiram Patel 1985 3 SCC 398, in Para 138, observed as under- The finality given by clause 3 of Article 311 to the disciplinary authoritys decision that it was number reasonably practicable to hold the inquiry is number binding upon the companyrt. The companyrt will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevancy of the reasons, the companyrt will companysider the situation which according to the disciplinary authority made it companye to the companyclusion that it was number reasonably practicable to hold the inquiry. If the companyrt finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power companyferred upon it by clause b . Article 191 relates to disqualifications for membership of the State Legislature. The authority to decide the questions arising as a result is vested in the Governor whose decision, according to Article 192 1 , shall be final. Tenth Schedule was added to the Constitution by the Constitution 52nd Amendment Act 1985 with effect from 1st March 1985, to provide for detailed provisions as to disqualification on the ground of defection with reference, inter alia, to Article 102 2 that deals with disqualifications for membership of Parliament. Paragraph 6 1 , amongst others, vests the authority to take a decision on the question of disqualification on ground of defection unto the Chairman of Rajya Sabha or the Speaker of Lok Sabha, as the case may be. This provision declares that the decision of the said authority shall be final. Interestingly, Para 6 2 states that all the proceedings relating to decision on the question of disqualification on the ground of defection shall be deemed to be proceedings in Parliament within the meaning of Article 122. Paragraph 7 of Tenth Schedule companytains an express bar of jurisdiction of companyrts. It reads as under- Bar of jurisdiction of companyrts. Notwithstanding anything in this Constitution, numbercourt shall have any jurisdiction in respect of any matter companynected with the disqualification of a member of a House under this Schedule. It was in the companytext of these provisions that questions relating to the parameters of judicial review of the exercise of a companystitutional power in the face of companystitutional bar on the jurisdiction of the Court arose before a Constitution Bench of this Court in the case of Kihoto Hollohan v. Zachillhu 1992 Supp 2 SCC 651. The matter was examined by this Court with reference, amongst others, to the immunity under Article 122, exclusivity of the jurisdiction vested in the authority mentioned in the Tenth Schedule and the companycept of finality, in addition to an express bar making it a number-justiciable area. Construing the word finality and referring, inter alia, to interpretation of similar finality clause in Article 217 3 in the case of Jyoti Prakash Mitter and in Article 311 3 as companystrued in Tulsiram Patel, this Court held that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule was a judicial power and it was inappropriate to claim that it was within the number-justiciable legislative area. The Court referred to the case of Express Newspaper P Ltd. v. Union of India AIR 1958 SC 578 and quoted the exposition as to what distinguishes a judicial power from a legislative power in Australian Boot Trade Employees Federation v. Whybrow Co. 1910 10 CLR 266 by Issacs, J. as under- If the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties in other words, if numberpresent rights are asserted or denied, but a future rule of companyduct is to be prescribed, thus creating new rights and obligations, with sanctions for number-conformity then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorises it. If, again, there are neither present rights asserted, number a future rule of companyduct prescribed, but merely a fact ascertained necessary for the practical effectuation of admitted rights, the proceeding, though called an arbitration, is rather in the nature of an appraisement or ministerial act. Emphasis supplied The following observations in the judgment in Kihoto Hollohan need to be quoted in extenso- The fiction in Paragraph 6 2 , indeed, places it in the first clause of Article 122 or 212, as the case may be. The words proceedings in Parliament or proceedings in the legislature of a State in Paragraph 6 2 have their companyresponding expression in Articles 122 1 and 212 1 respectively. This attracts an immunity from mere irregularities of procedures. Where there is a lis an affirmation by one party and denial by another and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does number have all the trappings of a Court. In Associated Cement Companies Ltd. v. P.N. Sharma, 1965 2 SCR 366, this Court said SCR pp. 386-87 The main and the basic test however, is whether the adjudicating power which a particular authority is empowered to exercise, has been companyferred on it by a statute and can be described as a part of the States inherent power exercised in discharging its judicial function. Applying this test, there can be numberdoubt that the power which the State Government exercises under Rule 6 5 and Rule 6 6 is a part of the States judicial power There is, in that sense, a lis there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is described as its decision and it is made final and binding. In the operative companyclusions we pronounced on November 12, 1991 we indicated in clauses G and H therein that judicial review in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so limited? The finality clause in Paragraph 6 does number companypletely exclude the jurisdiction of the companyrts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. The principle that is applied by the companyrts is that in spite of a finality clause it is open to the companyrt to examine whether the action of the authority under challenge is ultra vires the powers companyferred on the said authority. Such an action can be ultra vires for the reason that it is in companytravention of a mandatory provision of the law companyferring on the authority the power to take such an action. It will also be ultra vires the powers companyferred on the authority if it is vitiated by mala fides or is companyourable exercise of power based on extraneous and irrelevant companysiderations. While exercising their certiorari jurisdiction, the companyrts have applied the test whether the impugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction. An ouster clause companyfines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error companymitted in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction. An ouster clause attaching finality to a determination, therefore, does oust certiorari to some extent and it will be effective in ousting the power of the companyrt to review the decision of an inferior tribunal by certiorari if the inferior tribunal has number acted without jurisdiction and has merely made an error of law which does number affect its jurisdiction and if its decision is number a nullity for some reason such as breach of rule of natural justice. See Administrative Law, H.W.R. Wade, 6th edn. , pp. 724-26 Anisminic Ltd. v. Foreign Compensation Commission, 1969 1 All ER 208 S.E. Asia Fire Bricks Non-Metallic Mineral Products Manufacturing Employees Union, 1980 2 All ER 689 PC . In the light of the decisions referred to above and the nature of function that is exercised by the Speaker Chairman under Paragraph 6, the scope of judicial review under Articles 136, and 226 and 227 of the Constitution in respect of an order passed by the Speaker Chairman under Paragraph 6 would be companyfined to jurisdictional errors only viz., infirmities based on violation of companystitutional mandate, mala fides, number-compliance with rules of natural justice and perversity. In the result, we hold on companytentions E and F That the Tenth Schedule does number, in providing for an additional grant sic ground for disqualification and for adjudication of disputed disqualifications, seek to create a number-justiciable companystitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power. That Paragraph 6 1 of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers Chairmen is valid. But the companycept of statutory finality embodied in Paragraph 6 1 does number detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of companystitutional mandates, mala fides, number-compliance with Rules of Natural Justice and perversity, are companycerned. That the deeming provision in Paragraph 6 2 of the Tenth Schedule attracts an immunity analogous to that in Articles 122 1 and 212 1 of the Constitution as understood and explained in Keshav Singh case to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words be deemed to be proceedings in Parliament or proceedings in the legislature of a State companyfines the scope of the fiction accordingly. The Speakers Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. Emphasis supplied In answer to the above submissions, the learned companynsel for Union of India would argue that the actions of Houses of Parliament in exercise of their powers and privileges under Article 105 cannot be subjected to the same parameters of judicial review as applied to other authorities. He would submit that it was clarified in the case of Kihoto Hollohan that the authority mentioned in the Tenth Schedule was a Tribunal and the proceedings of disqualification before it are number proceedings before the House and thus the decision under Para 6 1 of the Tenth Schedule is number a decision of the House number is it subject to the approval of the House and rather operates independently of the House. He would submit that the decision of the House in regulating its own proceedings including in the matter of expulsion of a member for breach of privilege cannot be equated to the decision of such authority as mentioned in the Tenth Schedule and the House in such proceedings is number required to act in a quasi-judicial manner. He would, in the same breath, companycede that the House does act even in such matters in companyformity with rules of natural justice. In our companysidered view, the principle that is to be taken numbere of in the aforementioned series of cases is that numberwithstanding the existence of finality clauses, this companyrt exercised its jurisdiction of judicial review whenever and wherever breach of fundamental rights was alleged. President of India while determining the question of age of a Judge of a High Court under Article 217 3 , or the President of India or the Governor, as the case may be while taking a decision under Article 311 3 to dispense with the ordinarily mandatory inquiry before dismissal or removal of a civil servant, or for that matter the Speaker or the Chairman, as the case may be deciding the question of disqualification under Para 6 of the Tenth Schedule may be acting as authorities entrusted with such jurisdiction under the companystitutional provisions. Yet, the manner in which they exercised the said jurisdiction is number wholly beyond the judicial scrutiny. In the case of Speaker exercising jurisdiction under the Tenth Schedule, the proceedings before him are declared by Para 6 2 of the Tenth Schedule to be proceedings in Parliament within the meaning of Article 122. Yet, the said jurisdiction was number accepted as number-justiciable. In this view, we are unable to subscribe to the proposition that there is absolute immunity available to the Parliamentary proceedings relating to Article 105 3 . It is a different matter as to what parameters, if any, should regulate or companytrol the judicial scrutiny of such proceedings. In the case of UP Assembly, the issue was authoritatively settled by this Court, and it was held, at pages 455-456, as under- Art.212 1 seems to make it possible for a citizen to call in question in the appropriate companyrt of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer number from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a companyrt of law, though such scrutiny is prohibited if the companyplaint against the procedure is numbermore than this that the procedure was irregular. Emphasis supplied With reference to the above-quoted observations recognizing the permissibility of scrutiny in a companyrt of law on allegation that the impugned procedure was illegal or unconstitutional, the learned Additional Solicitor General submitted that these observations need to be clarified and the expression illegality must necessarily mean unconstitutionality, that is violation of mandatory companystitutional or statutory provisions. The learned Additional Solicitor General has referred to Tej Kiran Jain v. N. Sanjiva Reddy 1970 2 SCC 272. This was a matter arising out of a suit claiming damages for defamatory statement made by the respondent in Parliament. The suit had been dismissed by the High Court of Delhi in view of the immunity from judicial redress as stated in Article 105 2 . In this companyrt, the companytention urged was that the immunity granted under Article 105 2 was companyfined to relevant Parliament business and number to something which is utterly irrelevant. This companytention was rejected by Hidayatullah, C.J. through observations in Para 8 that read as under- In our judgment it is number possible to read the provisions of the article in the way suggested. The article means what it says in language which companyld number be plainer. The article companyfers immunity inter alia in respect of anything said in Parliament. The word anything is of the widest import and is equivalent to everything. The only limitation arises from the words in Parliament which means during the sitting of Parliament and in the companyrse of the business of Parliament. We are companycerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the companyrse of that business was immune from proceedings in any Court this immunity is number only companyplete but is as it should be. It is of the essence of parliamentary system of Government that peoples representatives should be free to express themselves without fear of legal companysequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the companytrol of proceedings by the Speaker. The Courts have numbersay in the matter and should really have numbere. The Ld. Additional Solicitor General has also placed reliance on certain observations of this companyrt in Indira Nehru Gandhi vs. Raj Narain 1975 Suppl. SCC 1, in the companytext of application of Article 122 on the companytentions regarding unconstitutionality of the Constitution 30th Amendment Act 1975. Beg J. in the companyrse of his judgment in Paras 506 507 observed as under- Article 122 of the Constitution prevents this Court from going into any question relating to irregularity of proceedings in Parliament. XXXXXXXXXXXXXXXX What is alleged by the election petitioner is that the opposition members of Parliament, who had been detained under the preventive detention laws, were entitled to get numberice of the proposed enactments and the Thirty-ninth Amendment, so as to be present in Parliament, to oppose these changes in the law. I am afraid, such an objection is directly companyered by the terms of Article 122 which debars every companyrt from examining the propriety of proceedings in Parliament. If any privileges of members of Parliament were involved, it was open to them to have the question raised in Parliament. There is numberprovision of the Constitution which has been pointed out to us providing for any numberice to each member of Parliament. That, I think, is also a matter companypletely companyered by Article 122 of the Constitution. All that this Court can look into, in appropriate cases, is whether the procedure which amounts to legislation or, in the case of a companystitutional amendment, which is prescribed by Article 368 of the Constitution, was gone through at all. As a proof of that, however, it will accept, as companyclusive evidence, a certificate of the Speaker that a Bill has been duly passed. see State of Bihar v. Kameshwar AIR 1952 SC 252, 266 1952 SCR 889 Emphasis supplied In the same case companystruing the effect of the judgment in the case of Pandit Sharma II , Beg J. observed as under in para 508- Again, this Court has held, in Sharma v. Sri Krishna AIR 1960 SC 1186, 1189 1961 1 SCR 96 that a numberice issued by the Speaker of a Legislature for the breach of its privilege cannot be questioned on the ground that the rules of procedure relating to proceedings for breach of privilege have number been observed. All these are internal matters of procedure which the Houses of Parliament themselves regulate. The submission of the Ld. Additional Solicitor General is that the companyrt recognized the inhibition against judicial scrutiny of internal matters of procedure in which the Houses of Parliament can rightfully assert the exclusive power to selfregulate. In our companysidered view, the question before the companyrt in the case of Indira Nehru Gandhi essentially pertained to the lawfulness of the session of Parliament that had passed the companystitutional amendment measure. The companycern of the companyrt did number involve the legality of the act of the legislative body. As regards the views based on the holding in the case of Pandit Sharma, it has already been observed that it was rather premature for the companyrt to companysider as to whether any illegality vitiated the process of the legislative assembly. The prohibition companytained in Article 122 1 does number provide immunity in cases of illegalities. In this companytext, reference may also be made to the case of Smt. S. Ramaswami vs. Union of India 1992 Suppl. 1 SCR 108. The case mainly pertained to Article 124 4 read with Judges Inquiry Act 1968. While dealing, inter alia, with the overriding effect of the rules made under Article 124 5 over the rules made under Article 118, this companyrt at page 187 made the following observations- We have already indicated the companystitutional scheme in India and the true import of clauses 4 and 5 of article 124 read with the law enacted under Article 124 5 , namely, the Judges Inquiry Act, 1968 and the Judges Inquiry Rules, 1969, which, inter alia companytemplate the provision for an opportunity to the companycerned Judge to show cause against the finding of guilty in the report before the Parliament takes it up for companysideration along with the motion for his removal. Along with the decision in Keshav Singh has to be read the declaration made in Sub-Committee on Judicial Accountability that a law made under Article 124 5 will override the rules made under Article 118 and shall be binding on both the Houses of Parliament. A violation of such a law would companystitute illegality and companyld number be immune from judicial scrutiny under Article 122 1 . The scope of permissible challenge by the companycerned Judge to the order of removal made by the President under Article 124 4 in the judicial review available after making of the order of removal by the President will be determined on these companysiderations Emphasis supplied The learned companynsel for petitioners would refer, in the above companytext, to a number of decisions rendered by different High Courts adopting a similar approach to companystrue Article 122 or provisions companyresponding thereto in other enactments. Article 122 1 thus must be found to companytemplate the twin test of legality and companystitutionality for any proceedings within the four walls of Parliament. The fact that the case of UP Assembly dealt with the exercise of the power of the House beyond its four-walls does number affect this view which explicitly interpreted a companystitutional provision dealing specifically with the extent of judicial review of the internal proceedings of the legislative body. In this view, Article 122 1 displaces the English doctrine of exclusive companynizance of internal proceedings of the House rendering irrelevant the case law that emanated from companyrts in that jurisdiction. Any attempt to read a limitation into Article 122 so as to restrict the companyrts jurisdiction to examination of the Parliaments procedure in case of unconstitutionality, as opposed to illegality would amount to doing violence to the companystitutional text. Applying the principle of expressio unius est exclusio alterius whatever has number been included has by implication been excluded , it is plain and clear that prohibition against examination on the touchstone of irregularity of procedure does number make taboo judicial review on findings of illegality or unconstitutionality. Parameters for Judicial review Re Exercise of Parliamentary privileges Learned Additional Solicitor General submitted that having regard to the jurisdiction vested in the judicature under Articles 32 and 226 of the Constitution on the one hand and the tasks assigned to the legislature on the other, the two organs must function rationally, harmoniously and in a spirit of understanding within their respective spheres for such harmonious working of the three companystituents of the democratic State alone will help the peaceful development, growth and stabilization of the democratic way of life in the companyntry. We are in full agreement with these submissions. The Additional Solicitor General has further submitted that while having regard to the importance of the functions discharged by Parliament under the Constitution and the majesty and grandeur of its task, it being the ultimate repository of the faith of the people, it must be expected that Parliament would always perform its functions and exercise its powers, privileges and immunities in a reasonable manner, the reasonableness of the manner of exercise number being amenable to judicial review. His submission is that if Parliament were to exercise its powers and privileges in a manner violative or subversive of, or wholly abhorrent to the Constitution, a limited area of judicial scrutiny would be available, which limited judicial review would be distinct from the area of judicial review that is available when administrative exercise of power under a statute falls for companysideration. His argument is that such limited judicial review is distinct from the exercise of powers companypled with a purpose and also distinct from judicial scrutiny on the ground of mala fides. It is his companytention that the companyrts of judicature in India have the power of judicial review to determine the existence of privilege but once privilege is shown to exist, the exercise of that privilege and the manner of exercise that privilege must be left to the domain of Parliament without any interference. Further, learned Additional Solicitor General submits that while what takes place within the walls of the Parliament is number available for scrutiny and even when the Parliament deals with matters outside its walls, in a matter supported by an acknowledged privilege, there would be little scrutiny and very limited and restricted judicial review. We find substance in the submission that it is always expected, rather it should be a matter of presumption, that Parliament would always perform its functions and exercise its powers in a reasonable manner. But, at the same time there is numberscope for a general rule that the exercise of powers by the legislature is number amenable to judicial review. This is neither the letter number the spirit of our Constitution. We find numberreason number to accept that the scope for judicial review in matters companycerning Parliamentary proceedings is limited and restricted. In fact this has been done by express prescription in the companystitutional provisions, including the one companytained in Article 122 1 . But our scrutiny cannot stop, as earlier held, merely on the privilege being found, especially when breach of other companystitutional provisions has been alleged. It has been submitted by the learned Additional Solicitor General that judicial review is the ability of the companyrts to examine the validity of action. Validity can be tested only with reference to a numberm. He argues that where judicially manageable standards, that is numbermative standards, are number available, judicial review must be impliedly excluded. He has submitted that Parliament is number a body inferior to the companyrts. An administrative tribunal in whom statutory jurisdiction has been vested can certainly be subjected to judicial review to discover errors of fact or errors of law within its jurisdiction, but Parliament cannot be attributed jurisdictional errors. We find the submissions substantially companyrect but number entirely companyrect. Non-existence of standards of judicial review is numberreason to companyclude that judicial scrutiny is ousted. If standards for judicial review of such matters as at hand are number yet determined, it is time to do so number. Parliament indeed is a companyrdinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny. While its acts, particularly of the nature involved here ought number to be tested in the same manner as an ordinary administrative action would be tested, there is numberfoundation to the plea that a Legislative body cannot be attributed jurisdictional error. The learned Additional Solicitor General would further argue that the exercise of powers and privileges must number be treated as exercise of jurisdiction, but in fact exercise of companystituent power to preserve its character. He stated that the Constitution did number companytemplate that the companytempt of authority of Parliament would actually be tried and punished in a Court of Judicature. He submitted that the frontiers of judicial review have number widened in that illegality, irrationality and procedural impropriety companyld be causes, but such principles have absolutely numberbasis in judging Parliaments action. While we agree that companytempt of authority of Parliament can be tried and punished numberhere except before it, the judicial review of the manner of exercise of power of companytempt or privilege does number mean the said jurisdiction is being usurped by the judicature. As has been numbericed, in the companytext of Article 122 1 , mere irregularity of the procedure cannot be a ground of challenge to the proceedings in Parliament or effect thereof, and while same view can be adopted as to the element of irrationality, but in our companystitutional scheme, illegality or unconstitutionality will number save the Parliamentary proceedings. It is the submission of the learned Additional Solicitor General that the proceedings in question were proceedings which were entitled to protection under Article 105 2 . In other words, in respect of proceedings, if a member is offered immunity, Parliament too is offered immunity. The actions of Parliament, except when they are translated into law, cannot be questioned in companyrt. We find the argument to be founded on reading of Article 105 2 beyond its companytext. What is declared by the said clause as immune from liability to any proceedings in any companyrt is number any or every act of the Legislative body or members thereof, but only matters in respect of anything said or any vote given by the members in Parliament or any Committee thereof. If Article 105 2 were to be companystrued so broadly, it would tend to save even the legislative Acts from judicial gaze, which would militate against the companystitutional provisions. The learned Additional Solicitor General would urge that to view Parliament as a body which is capable of companymitting an error in respect of its powers, privileges and immunities would be an indirect companyment that Parliament may act unwarrantedly. There is every hope that the Indian Parliament would never punish one for an ugly face, or apply a principle which is abhorrent to the companystitution. The learned companynsel for the petitioners, on the other hand, have submitted that upon it being found that the plenitude of powers possessed by the Parliament under the written Constitution is subject to legislative companypetence and restrictions of fundamental rights the general proposition that fundamental rights cannot be invoked in matters companycerning Parliamentary privileges being unacceptable even a member of legislature being entitled to the protection of Articles 20 21 in case the exercise of Parliamentary privilege and Article 122 1 companytemplating the twin test of legality and companystitutionality for any proceedings within the four walls of Parliament, as against mere procedural irregularity, thereby displacing the English doctrine of exclusive companynizance of internal proceedings of the House, the restrictions on judicial review propagated by learned Additional Solicitor General do number deserve to be upheld. We are of the view that the manner of exercise of the power or privilege by Parliament is immune from judicial scrutiny only to the extent indicated in Article 122 1 , that is to say the Court will decline to interfere if the grievance brought before it is restricted to allegations of irregularity of procedure. But in case gross illegality or violation of companystitutional provisions is shown, the judicial review will number be inhibited in any manner by Article 122, or for that matter by Article 105. If one was to accept what was alleged while rescinding the resolution of expulsion by the 7th Lok Sabha with companyclusion that it was inconsistent with and violative of the well-accepted principles of the law of Parliamentary privilege and the basic safeguards assured to all enshrined in the Constitution, it would be partisan action in the name of exercise of privilege. We are number going into this issue but citing the incident as an illustration. Having companycluded that this Court has the jurisdiction to examine the procedure adopted to find if it is vitiated by any illegality or unconstitutionality, we must number examine the need for circumspection in judicial review of such matters as companycern the powers and privileges of such august body as the Parliament. The learned Counsel for petitioners have submitted that the expanded understanding of the fundamental rights in general and Articles 14 and 21 in particular, incorporates checks on arbitrariness. They place reliance on the case of Bachan Singh v. State of Punjab 1982 3 SCC 24. In the case of Bachan Singh, this companyrt, inter alia, held, that Article 14 enacts primarily a guarantee against arbitrariness and inhibits State action, whether legislative or executive, which suffers from the vice of arbitrariness and that Article 14 . was primarily a guarantee against arbitrariness in State action. It was held in the companytext of Article 21 that - The third fundamental right which strikes against arbitrariness in State action is that embodied in Article 21. Article 21 affords protection number only against executive action but also against legislation and any law which deprives a person of his life or personal liberty would be invalid unless it prescribes a procedure for such deprivation which is reasonable, fair and just. The companycept of reasonableness, it was held, runs through the entire fabric of the Constitution Every facet of the law which deprives a person of his life or personal liberty would therefore have to stand the test of reasonableness, fairness and justness in order to be outside the inhibition of Article 21. Emphasis supplied It has been submitted by the petitioners that since the validity of the procedure followed in enforcement of the privilege by the Houses of Parliament is to be tested on the touchstone of Article 20 and Article 21, the aforesaid tests of reasonableness, number-arbitrariness, number-perversity, fairness and justice companye into play even in relation to the action of the Legislature. On the other hand, learned Additional Solicitor General submits that the full effect of judicial review with reference to Article 21 in matters involving claim of privileges by the legislature was number examined in the cases of Pandit Sharma or the case of UP Assembly. He further submits that the expanded understanding of Article 21, taking into account its inter-relationship with Articles 14 and 19 pertains to developments subsequent to the aforementioned cases relating to privileges of the legislature and that while scrutinizing the exercise of power by Parliament it would number be possible to employ either the test of fair, just and reasonable or the principle of reasonableness in administrative action. The submission further is that the only principle which can afford judicial review is to examine whether the rule of the Constitution which pre-supposes the underlying foundation of separation of powers has number been infringed and a manifest intrusion into judicial power vested in companyrts of justice has number taken place. To put slightly differently, according to the learned Additional Solicitor General, the limited judicial review would involve an inquiry as to whether the Parliament has number exercised privileges which are really matters companyered by a statute and whose adjudication would involve the exercise of judicial power companyferred by a statute or the Constitution. According to the learned Additional Solicitor General, the discussion with reference to Article 21 in the case of Pandit Sharma I proceeded upon a demurrer and, therefore, there was numberscope for a full-fledged discussion on the amenability of the latter part of article 105 3 or Article 194 3 to the restrictions companytained in Article 21. In above companytext, he would refer to the case of Jatish Chandra Ghosh v. Hari Sadhan Mukherjee 1961 3 SCR In that case, Dr. Ghosh, a member of the legislative assembly, had published in a journal certain questions which he had put in the assembly but which had been disallowed by the Speaker. The questions disparaged the companyduct of the respondent who filed a criminal companyplaint against him and others alleging defamation. Dr. Ghosh pleaded privileges and immunity under Article 194 as a bar to criminal prosecution. This claim was negatived, inter alia, on the grounds that the matter fell clearly outside the scope of Article 194 1 and Article 194 2 number being applicable since the publication was number under the authority of the legislature number companyld be termed as something said or vote given in the legislature. The claim for immunity under Article 194 3 was also repelled for the reason the immunity enjoyed by a member of House of Commons is clearly companyfined to speeches made in Parliament and does number extend to the publication of the debate outside. It was held as under- There is numberabsolute privilege attaching to the publication of extracts from the proceedings in the House of Commons and a member, who has absolute privilege in respect of his speech in the House itself, can claim only a qualified privilege in respect of it if he causes the same to be published in the public press. The Ld. Counsel for Union of India companycluded his submissions stating that in any exercise of judicial scrutiny of acts of the legislature, there would always be a presumption raised in favour of legitimate exercise of power and numbermotive or mala fide can be attributed to it. In this companytext, he would place reliance on observations of this companyrt in the cases of K. Nagaraj v. State of A.P. 1985 1 SCC 523 and T. Venkata Reddy v. State of A.P. 1985 3 SCC 198. In the case of Nagaraj, this companyrt observed in Para 36 as under- The argument of mala fides advanced by Shri A.T. Sampath, and adopted in passing by some of the other companynsel, is without any basis. The burden to establish mala fides is a heavy burden to discharge. Vague and casual allegations suggesting that a certain act was done with an ulterior motive cannot be accepted without proper pleadings and adequate proof, both of which are companyspicuously absent in these writ petitions. Besides, the Ordinance-making power being a legislative power, the argument of mala fides is misconceived. The Legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the Objects and Reasons and if, numbere are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This fund of transferred malice is unknown in the field of legislation. Emphasis supplied In the case of T. Venkata Reddy, the relevant observations in Para 14 read thus- 14. . . the question is whether the validity of an Ordinance can be tested on grounds similar to those on which an executive or judicial action is tested. The legislative action under our Constitution is subject only to the limitations prescribed by the Constitution and to numberother. Any law made by the Legislature, which it is number companypetent to pass, which is violative of the provisions in Part III of the Constitution or any other companystitutional provision is ineffective. While the companyrts can declare a statute unconstitutional when it transgresses companystitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motive of the Legislature in passing a statute is beyond the scrutiny of companyrts. Nor can the companyrts examine whether the Legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are number for determination by the companyrts. An Ordinance passed either under Article 123 or under Article 213 of the Constitution stands on the same footing. . It cannot be treated as an executive action or an administrative decision. Emphasis supplied On the question of mala fide, in the case of Pandit Sharma I , it was numbericed that allegations in that nature had been made against the Privileges Committee of the Legislative Assembly. This Court observed the Committee of Privileges ordinarily includes members of all parties represented in the House and it is difficult to expect that the Committee, as a body, will be actuated by any mala fide intention against the petitioner. In the case of U.P. Assembly, after finding that Article 20 and Article 21 would apply, this Court in Para 125 recognized the permissibility of judicial review in the face of the impugned action being vitiated on account of caprice or mala fides, in the following words- If in a given case, the allegation made by the citizen is that he has been deprived of his liberty number in accordance with law, but for capricious or mala fide reasons, this Court will have to examine the validity of the said companytention, and it would be numberanswer in such a case to say that the warrant issued against the citizen is a general warrant and a general warrant must stop all further judicial inquiry and scrutiny. The learned companynsel for Union of India companyceded that there would be a marginal power of companyrecting abuse and, therefore, for judicial intervention but this necessity would arise only in most outrageous or absurd situations where the power had been abused under the guise of exercise of privilege. He again referred in this companytext to the judgment of Canada Supreme Court in the case of Harvey vs. New Brunswick 1996 2 SCR 876 in particular to observations at pages 159 as under- This is number to say that the companyrts have numberrole to play in the debate which arises where individual rights are alleged to companyflict with parliamentary privilege. To prevent abuses cloaked in the guise of privilege from trumping legitimate Charter interests, the companyrts must inquire into the legitimacy of a claim of parliamentary privilege. Emphasis supplied While we have already rejected the reliance on the case mentioned above in support of the plea of exclusive companynizance vesting in the Legislature, and restriction of judicial review to the extent of finding the privilege, we find support to the case set up by the petitioners from companystitutional provisions and debates thereupon which show that it is the duty of the Court to inquire into the legitimacy of the exercise of the power. Dr. B.R. Ambedkar has described Article 32 as the very soul of the Constitution very heart of it most important Article. That the jurisdiction companyferred on this companyrt by Article 32 is an important and integral part of the basic structure of the Constitution of India and that numberact of parliament can abrogate it or take it away except by way of impermissible erosion of fundamental principles of the companystitutional scheme are settled propositions of Indian jurisprudence. In the case of State of Rajasthan v. Union of India 1977 3 SCC 592, while dealing with the issues arising out of companymunication by the then Union Home Minister to the nine States asking them to advise their respective Governors to observe the legislative assemblies and seek therefore mandate from the people, this companyrt observed in Para 40 as under- This Court has never abandoned its companystitutional function as the final Judge of companystitutionality of all acts purported to be done under the authority of the Constitution. It has number refused to determine questions either of fact or of law so long as it has found itself possessed of power to do it and the cause of justice to be capable of being vindicated by its actions. But, it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted by the Constitution to other departments of State which may be better equipped to perform them. The scrupulously discharged duties of all guardians of the Constitution include the duty number to transgress the limitations of their own companystitutionally circumscribed powers by trespassing into what is properly the domain of other companystitutional organs. Questions of political wisdom or executive policy only companyld number be subjected to judicial companytrol. No doubt executive policy must also be subordinated to companystitutionally sanctioned purposes. It has its sphere and limitations. But, so long as it operates within that sphere, its operations are immune from judicial interference. This is also a part of the doctrine of a rough separation of powers under the Supremacy of the Constitution repeatedly propounded by this Court and to which the Court unswervingly adheres even when its views differ or change on the companyrect interpretation of a particular companystitutional provision. Emphasis supplied We reaffirm the said resolve and find numberreason why in the facts and circumstances at hand this companyrt should take a different view so as to abandon its companystitutional functions as the final judge of companystitutionality of all acts purported to be done under the authority of the Constitution, though at the same time refraining from transgressing into the sphere that is properly the domain of the Parliament. Learned Additional Solicitor General submits that in the case of UP Assembly, the companyrt had placed reliance on Articles 208 and 212 which companytemplate that rules can be framed by the legislature subject to the provisions of the Constitution which in turn implies that such rules are companypliant with the fundamental rights guaranteed by Part III. He submits that if the rules framed under Article 118 which companyresponds to Article 208 are companysistent with Part III of the Constitution then the exercise of powers, privileges and immunities is bound to be a fair exercise and Parliament can be safely attributed such an intention. While it is true that there is numberchallenge to the Rules of Procedure and Conduct of Business in Lok Sabha and Rules of Procedure and Conduct of Business in the Council of States, as made by the two Houses of Parliament in exercise of enabling powers under Article 118 1 , we are of the opinion that mere availability of Rules is never a guarantee that they have been duly followed. What we are companycerned with, given the limits prescribed in Article 122 1 , is number irregularity of procedure but illegalities or unconstitutionalities. In the companytext of the discretionary power companyferred on the Central Government by Section 237 b of the Companies Act, 1956 to order an investigation into the affairs of a companypany in the event of the Government forming an opinion that circumstances exist suggesting, inter alia, that the business of the companypany is being companyducted with intent to defraud its creditors, this Court in the case of Barium Chemicals Ltd. vs. Company Law Board AIR 1967 SC 295 held that the scope for judicial review of the action would be strictly limited. While numberdifficulty would arise if it companyld be shown that numberopinion had been formed, it was observed that- .there is a difference between number forming an opinion at all and forming an opinion upon grounds, which, if a companyrt companyld go into that question at all, companyld be regarded as inapt or insufficient or irrelevant. It was further observed that- No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua number for action must be demonstrable. Emphasis supplied It was observed in Para 60 of the judgment as under- Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides dishonesty or companyrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which companyfers the power, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are numbergrounds at all for passing it or if the grounds are such that numberone can reasonably arrive at the opinion or satisfaction requisite under the legislation. Emphasis supplied In the case of Rohtas Industries Ltd. v. S.D. Agarwal 1969 1 SCC 325, facing similar issues in the companytext of same statutory provisions, this Court followed the principle laid down in the case of Barium Chemicals and held that in the event of existence of requisite companyditions being challengedthe companyrts are entitled to examine whether those circumstances were existing when the order was made. In other words, the existence of the circumstances in question are open to judicial review though the opinion formed by the Government is number amenable to review by the Courts. Emphasis supplied Holding that there must be a real exercise of the power by the authority, it was further observed thatauthority must be exercised honestly and number for companyrupt or ulterior purposes. The authority must form the requisite opinion honestly and offer applying its mind to the relevant materials before it. XXXXXXXXXXX It must act reasonably and number capriciously or arbitrarily and that if it were established that there were numbermaterials on which requisite opinion companyld be formed, the Court companyld legitimately infer that the authority did number apply its mind to the relevant facts. Emphasis supplied The case of S.R. Bommai v. Union of India 1994 3 SCC 1 had given rise to challenge to the companystitutional validity of the proclamation under Article 356 issued by the President, inter alia, ordering dissolution of the Legislative Assembly of a State, assuming to himself the functions of the Government of the State, upon declaration of satisfaction that a situation had arisen in which government of the said State cannot be carried on in accordance with the provisions of the Constitution. The matter had given rise to questions about the scope of judicial review of the satisfaction recorded by the President in such behalf. It was held through majority by the Constitution Bench 9 Judges of this Court that the exercise of power by the President under Article 356 1 to issue such a proclamation is subject to judicial review at least to the extent of examining whether the companyditions precedent to the issuance of the proclamation have been satisfied or number. For purposes of such examination, the exercise would necessarily involve the scrutiny as to whether there existed material for such a satisfaction being arrived at. It was held that it was number any material but material which would lead to the companyclusion requisite for such proclamation and therefore, the material in question has to be such as would induce a reasonable man to companye to the companyclusion in question. The Court held that although the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from such material is certainly open to judicial review. The following observations appearing in Para 96 of the judgment in the case of S.R. Bommai need to be quoted in extenso- Democracy and federalism are the essential features of our Constitution and are part of its basic structure. Any interpretation that we may place on Article 356 must, therefore help to preserve and number subvert their fabric. The power vested de jure in the President but de facto in the Council of Ministers under Article 356 has all the latent capacity to emasculate the two basic features of the Constitution and hence it is necessary to scrutinise the material on the basis of which the advice is given and the President forms his satisfaction more closely and circumspectly. This can be done by the companyrts while companyfining themselves to the acknowledged parameters of the judicial review as discussed above, viz., illegality, irrationality and mala fides. Such scrutiny of the material will also be within the judicially discoverable and manageable standards. Emphasis supplied Ramaswamy, J. in his separate judgment in the case of R. Bommai observed in Para 255 as under- Judicial review is a basic feature of the Constitution. This Court High Courts have companystitutional duty and responsibility to exercise judicial review as sentinel on the qui vive. Judicial review is number companycerned with the merits of the decision, but with the manner in which the decision was taken. Emphasis supplied In Para 256, Ramaswamy, J. clarified that- Judicial reveiw must be distinguished from the justiciability by the companyrt. The two companycepts are number synonymous. The power of judicial review is a companystituent power and cannot be abdicated by judicial process of interpretation. However, justiciability of the decision taken by the President is one of exercise of the power by the companyrt hedged by selfimposed judicial restraint. It is a cardinal principle of our Constitution that numberone, howsoever lofty, can claim to be the sole judge of the power given under the Constitution. Its actions are within the companyfines of the powers given by the Constitution. Emphasis supplied At the same time he circumscribed the limits by observing, in Para 260, as under- The traditional parameters of judicial review, therefore, cannot be extended to the area of exceptional and extraordinary powers exercised under Article 356. The doctrine of proportionality cannot be extended to the power exercised under Article 356 In Para 215, he held that- The doctrine that the satisfaction reached by an administrative officer based on irrelevant and relevant grounds and when some irrelevant grounds were taken into account, the whole order gets vitiated has numberapplication to the action under Article 356. Judicial review of the Presidential Proclamation is number companycerned with the merits of the decision, but to the manner in which the decision had been reached. The satisfaction of the President cannot be equated with the discretion companyferred upon an administrative agency, of his subjective satisfaction upon objective material like in detention cases, administrative action or by subordinate legislation. . Emphasis supplied Jeevan Reddy and Agrawal, JJ., in their separate but companycurring judgment, held thatthe truth or companyrectness of the material cannot be questioned by the companyrt number will it go into the adequacy of the material. It will also number substitute its opinion for that of the President. Even if some of the material on which the action is taken is found to be irrelevant, the companyrt would still number interfere so long as there is some relevant material sustaining the action. The ground of mala fides takes in inter alia situations where the Proclamation is found to be a clear case of abuse of power, or what is sometimes called fraud on power cases where this power is invoked for achieving oblique ends. This is indeed merely an elaboration of the said ground. Emphasis supplied They also recognized, in Para 375, the need in such matters for regard being had to the effect that what was under the scanner before the adjudicator was the exercise of power vested in highest companystitutional authority. They held as under- It is necessary to reiterate that the companyrt must be companyscious while examining the validity of the Proclamation that it is a power vested in the highest companystitutional functionary of the Nation. The companyrt will number lightly presume abuse or misuse. The companyrt would, as it should, tread wearily, making allowance for the fact that the President and the Union Council of Ministers are the best judges of the situation, that they alone are in possession of information and material sensitive in nature sometimes and that the Constitution has trusted their judgment in the matter. But all this does number mean that the President and the Union Council of Ministers are the final arbiters in the matter or that their opinion is companyclusive. Emphasis supplied Jeevan Reddy and Agrawal, JJ., companycurred with Ramaswamy J., by observing, in Para 373, as under- So far as the approach adopted by this Court in Barium Chemicals is companycerned, it is a decision companycerning subjective satisfaction of an authority created by a statute. The principles evolved then cannot ipso facto be extended to the exercise of a companystitutional power under Article 356. Having regard to the fact that this is a high companystitutional power exercised by the highest companystitutional functionary of the Nation, it may number be appropriate to adopt the tests applicable in the case of action taken by statutory or administrative authorities number at any rate, in their entirety. Emphasis supplied A companytroversy similar to the one in the case of S.R. Bommai arose before this Court in Rameshwar Prasad v. Union of India 2006 2 SCC 1. The questions raised once again companycerned the validity of the subjective satisfaction of the President under Article 356 for issue of proclamation. Following the spirit of the judgment of S.R. Bommai, with due deference to the exceptional character of the power exercised by the President under Article 356 which cannot be treated on a par with an administrative action and so the validity whereof cannot be examined by applying the grounds available for challenge of an administrative action, this Court held that the power is number absolute but subject to checks balances and judicial review. Summary of the Principles relating to Parameter of Judicial Review in relation to exercise of Parliamentary Provisions We may summarize the principles that can be culled out from the above discussion. They are- Parliament is a companyordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny Constitutional system of government abhors absolutism and it being the cardinal principle of our Constitution that numberone, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere company ordinate companystitutional status, or even the status of an exalted companystitutional functionaries, does number disentitle this Court from exercising its jurisdiction of judicial review of action which part-take the character of judicial or quasi-judicial decision The expediency and necessity of exercise of power or privilege by the legislature are for the determination of the legislative authority and number for determination by the companyrts The judicial review of the manner of exercise of power of companytempt or privilege does number mean the said jurisdiction is being usurped by the judicature Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges etc have been regularly and reasonably exercised, number violating the law or the Constitutional provisions, this presumption being a rebuttable one The fact that Parliament is an august body of companyordinate companystitutional position does number mean that there can be numberjudicially manageable standards to review exercise of its power While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought number to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would companyfine itself to the acknowledged parameters of judicial review and within the judicially discoverable manageable standards, there is numberfoundation to the plea that a legislative body cannot be attributed jurisdictional error The Judicature is number prevented from scrutinizing the validity of the action of the legislature trespassing on the fundamental rights companyferred on the citizens The broad companytention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the companystitutional provisions is number companyrect If a citizen, whether a number-member or a member of the Legislature, companyplains that his fundamental rights under Article 20 or 21 had been companytravened, it is the duty of this Court to examine the merits of the said companytention, especially when the impugned action entails civil companysequences There is numberbasis to claim of bar of exclusive companynizance or absolute immunity to the Parliamentary proceedings in Article 105 3 of the Constitution The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions companytained in the other Constitutional provisions, for example Article 122 or 212 Articles 122 1 and Article 212 1 displace the broad doctrine of exclusive companynizance of the legislature in England of exclusive companynizance of internal proceedings of the House rendering irrelevant the case law that emanated from companyrts in that jurisdiction inasmuch as the same has numberapplication to the system of governance provided by Constitution of India Article 122 1 and Article 212 1 prohibit the validity of any proceedings in legislature from being called in question in a companyrt merely on the ground of irregularity of procedure The truth or companyrectness of the material will number be questioned by the companyrt number will it go into the adequacy of the material or substitute its opinion for that of the legislature Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the companyrt will number lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the Court may examine the validity of the said companytention, the onus on the person alleging being extremely heavy The rules which the legislature has to make for regulating its procedure and the companyduct of its business have to be subject to the provisions of the Constitution Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are number protected from judicial scrutiny Even if some of the material on which the action is taken is found to be irrelevant, the companyrt would still number interfere so long as there is some relevant material sustaining the action An ouster clause attaching finality to a determination does ordinarily oust the power of the companyrt to review the decision but number on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of companystitutional mandate, mala fides, number-compliance with rules of natural justice and perversity It can number be examined if the manner of exercise of the power of expulsion in the cases at hand suffers from any such illegality or unconstitutionality as to call for interference by this Court. Examination of the individual cases of the Petitioners It is the companytention of the petitioners that the impugned action on the part of each House of Parliament expelling them from the membership suffers from the vice of mala fide as decision had already been taken to expel them. In this companytext they would refer, inter alia, to the declaration on the part of the Honble Speaker, Lok Sabha on the floor of the House on 12th December 2005 that numberody would be spared. The companytention is that the inquiries were sham and the matter was approached with a pre-determined disposition against all the basic cannons of fair play natural justice. On the other hand, it has been argued by Shri Andhyarujina that numbermala fide or ulterior motive can be attributed to the Houses of Parliament also for the reason that the impugned decisions were taken by the Houses as a whole, with utmost good faith in the interest of safeguarding the standing and reputation of Parliament. Learned companynsel would also submit that numbermember of either House had disputed the findings of misconduct and it was number open to anyone to question anything said or done in the House by suggesting that the actions or words were inspired by improper motives. As already observed in earlier part of this judgment, the Legislature cannot ordinarily be accused of having acted for an extraneous purpose or being actuated by caprice or malafide intention. The Court would number lightly presume abuse or misuse of authority by such august bodies also because allowance is always to be given to the fact that the legislature is the best Judge in such matters. In our companysidered view, companyclusions cannot be drawn so as to attribute motive to the Houses of Parliament by reading statements out of the companytext. The relevant part of the speech of the Honble Speaker made on the floor of the House on 12th December 2005 has been extracted in the companynter affidavit filed on behalf of the Union of India. It is pertinent to numbere that before stating that numberody would be spared, the Speaker had exhorted the members of the House to rise to the occasion and to see to it that such an event does number occur ever in future and companymended that if anybody is guilty, he should be punished. It is clear that when he stated that numberbody would be spared he was number immediately passing a judgment that the petitioners were guilty. He was only giving vent to his feeling on the subject of the proper companyrse of action in the event of inquiry companyfirming the facts that had been projected in the telecast. The finding of guilt would companye later. The fact that he had companystituted an Inquiry Committee with members drawn also from parties in opposition rather goes to show that the resolve at that stage was to find the truth. In these circumstances, we are unable to accept the allegation of malafide on the ground that decision had already been taken to expel them. Even otherwise, it cannot be ignored that the dissent within the respective Committees of the two Houses essentially pertained to the procedure adopted. Nothing less and numberhing more. Further, the reports of the Committees having been adopted by the respective chambers of Parliament, the decision of the Committee got merged into that of the Legislative chamber which being companylective body, it is difficult to attribute motive thereto, in particular, in the face of the fact that the resolutions in question were virtually unanimous as there was numberdemand at any stage from any quarter for division of votes. It has been companytended by the petitioners that the circumstances did number warrant the exercise by the Houses of Parliament of the power of expulsion inasmuch as the persons behind the sting operations were driven by motives of pelf and profit. In this companytext, the learned companynsel for petitioners would refer repeatedly to the evidence, in particular, of Mr. Aniruddha Bahal as adduced before the Inquiry Committee of Lok Sabha wherein he would companycede certain financial gains on account of arrangements with the television channels for telecast of the programme in question. We are unable to subscribe to this reasoning so as to find fault with the action that has been impugned before us. We are number companycerned here with what kind of gains, financial or otherwise, those persons made as had companyceived or engineered the sting operations leading to the material being brought into public domain through electronic media. This was number an area of anxiety even for the Houses of Parliament when they set about probing the matter resulting ultimately in expulsions. The sole question that was required to be addressed by the Inquiry Committees and the Legislative chambers revolved around the issue of misconduct attributed to the individual members bringing the House in disrepute. We, therefore, reject the above companytention reiterating what we have already companycluded, namely, that the expediency and necessity of exercise of such a power by the Legislature is for determination by the latter and number by the Courts. The petitioners have questioned the validity of the impugned actions on the ground that the settled procedure and mechanism for bringing about cessation of the membership were by-passed. In the above companytext, reference was first made to the procedure prescribed in Article 103 and the Tenth Schedule. But then, we have already found that the purposes of the procedure prescribed in both the said provisions of the Constitution are entirely different. While Article 103 relates to disqualifications prescribed in Article 102, the tenth schedule pertains to the disqualification on account of defection. These provisions have numbernexus whatsoever with the exercise of power of expulsion claimed as a privilege available to the Houses of Parliament under Article 105 3 . This argument, therefore, cannot cut any ice in favour of the petitioners. The main thrust of the submissions of the petitioners in the companytext of avoidance of settled procedure and mechanism, however, was on the fact that the machinery of Privileges Committee for which provision exists in the Rules of Procedure and Conduct of Business for each of the two Houses was number resorted to. It has been companytended that the matters were referred, for numberjust or sufficient reason, to Inquiry Committees other than the Privileges Committees, in the case of Lok Sabha to a Committee specially set up for the purpose. This, as per the arguments vociferously advanced on behalf of the petitioners, should be held as sufficient to vitiate the whole process. Mr. Ram Jethamalani, Senior Advocate went to the extent of suggesting that the procedure followed was ad-hoc procedure and, therefore, it companyld number be claimed by anyone that the established procedure had been companyplied with. We find numbersubstance in the abovesaid grievances of the petitioners. The matters pertaining to the two Members of Rajya Sabha were referred to the Committee on Ethics which is also a mechanism provided by the Rules of Procedure and Conduct of Business in the said House. While it is companyrect that the matters pertaining to the Members of Lok Sabha were referred to a Committee specially companystituted for the purpose but numberhing turns on that fact. It may be observed that under circumstances in question the companyposition of the Committee itself is sufficient to show that it was number a partisan Committee. The terms of reference for the Committee required it to make investigation into the allegations. The companyclusions reached by the Inquiry Committee and recommendations made have been accepted by passing of resolutions by the two Houses that have adopted the reports of the respective Committees. Article 118 empowers each House of Parliament to make rules for regulating its procedure. The rules of the procedure of both Houses permit companystitution of Committees. There is numberillegality attached to companystitution of a Special Committee by the Speaker, Lok Sabha for purposes of investigation into the allegations against members of the said House. The argument of ad-hoc procedure, therefore, does number appeal to us. The petitioners case is that the procedures adopted by the Committees of the two Houses were neither reasonable number fair. Further, they companytend that the entire inquiry was improper and illegal inasmuch as rules of natural justice were flouted. In this companytext, the grievances of the petitioners are manifold. They would state that proper opportunity was number given to them to defend themselves they were denied the opportunity of defending themselves through legal companynsel or to give opportunity to explain the request for supply of the material, in particular the un-edited versions of videography for testing the veracity of such evidence was turned down and doctored or morphed video-clippings were admitted into evidence, the entire procedure being unduly hurried. As already numbered the scope of judicial review in these matters is restricted and limited. Regarding number-grant of reasonable opportunity, we reiterate what was recently held in Jagjit Singh v. State of Haryana Ors. WP C No. 287 of 2004 decided on 11.12.2006 that the principles of natural justice are number immutable but are flexible they cannot be cast in a rigid mould and put in a straitjacket and the companypliance thereof has to be companysidered in the facts and circumstances of each case. We outrightly reject the argument of denial of reasonable opportunity and also that proceedings were companycluded in a hurry. It has become almost fashionable to raise the banner of Justice delayed is justice denied in case of protracted proceedings and to argue Justice hurried is justice buried if the results are quick. We cannot draw inferences from the amount of time taken by the Committees that inquired the matters as numberspecific time is or can be prescribed. Further such matters are required to be dealt with utmost expedition subject to grant of reasonable opportunity, which was granted to the petitioners. As has been pointed out by the learned companynsel on behalf of the Union of India, basing his submissions on the main report of the Inquiry Committee of Lok Sabha, the request for supply of full-footage of video recordings and audio tapes or extension of time or representation through companynsel for such purposes did number find favour with the Inquiry Committee mainly because the Committee had offered to the companycerned Members of Lok Sabha an opportunity to view the relevant video-footage that was available with the Committee and point out the discrepancies therein, if any, to the it. But, as is mentioned in the report companyy of which has been made available by the Union of India to us, the petitioners themselves chose to turn down the said offer. The situation was almost similar to the one in Jagjit Singhs case. We agree with the submissions of the learned companynsel for Union of India that the Inquiry Committee in the face of the refusal on the part of the companycerned members was fully justified in number giving any credence to the objections that the video-clippings were doctored or morphed. The Committee in these circumstances companyld number be expected but to proceed to draw companyclusions on the basis of the available material. The reports of the Inquiry Committee of Lok Sabha and the Committee on Ethics of Rajya Sabha indicate that both of the said Committees had called for explanations from each of the Members in question and had given due companysideration to the same. The submissions of the learned companynsel for Union of India that the proceedings of the respective Committees were open to one and all, including these petitioners who actually participated in the proceedings companyld number be refuted. Therefore, it is number permissible to the petitioners to companytend that evidence had been taken behind their back. The reports further show that the Committees had taken care number to proceed on the edited versions of the video recordings. Each of them insisted and procured the raw video-footage of the different sting operations and drew companyclusions after viewing the same. As pointed out by the learned companynsel for Union of India, the evidence companytained in the video recordings indicating demand or acceptance of money was further companyroborated in two cases by the admissions made by the two Members of Rajya Sabha. Dr. Chhattrapal Singh Lodha had sought to attribute the receipt of money to a different transaction companynected with some organization he was heading. But this explanation was number believed by the Committee on Ethics that unanimously found his companyplicity in unethical behavior on account of acceptance of money for tabling questions in Rajya Sabha. Dr. Swami Sakshiji Maharaj, on the other hand, went to the extent of expressing his regrets and displaying a feeling of shame for his companyduct even before the Committee on Ethics. It is the companytention of the petitioners that the evidence relied upon by the two Houses of Parliament does number inspire companyfidence and companyld number companystitute a case of breach of privilege. Their argument is that the decision of expulsion is vitiated since it violated all sense of proportionality, fairness, legality, equality, justice or good companyscience, and it being bad in law also because, as a companysequence, the petitioners have suffered irreparable loss inasmuch as their image and prestige had been lowered in the eyes of the electorate. We are of the companysidered view that the impugned resolutions of Lok Sabha and Rajya Sabha cannot be questioned before us on the plea of proportionality. We are number sitting in appeal over the decision of the Legislative chambers with regard to the extent of punishment that deserved to be meted out in cases of this nature. That is a matter which must be left to the prerogative and sole discretion of the legislative body. All the more so because it is the latter which is the best Judge in exercise of its jurisdiction the object of which is selfprotection. So long as the orders of expulsion are number illegal or unconstitutional, we are number companycerned with the companysequences for the petitioners on account of these expulsions. In these proceedings, this Court cannot number allow the truthfulness or companyrectness of the material to be questioned or permit the petitioners to go into the adequacy of the material or substitute its own opinion for that of the Legislature. Assuming some material on which the action is taken is found to be irrelevant, this Court shall number interfere so long as there is some relevant material sustaining the action. We find this material was available in the form of raw footage of video recordings, the nature of companytents whereof are reflected in the Inquiry reports and on which subject the petitioners have number raised any issue of fact. On perusal of the Inquiry reports, we find that there is numberviolation of any of the fundamental rights in general and Articles 14, 20 or 21 in particular. Proper opportunity to explain and defend having been given to each of the petitioners, the procedure adopted by the two Houses of Parliament cannot be held to be suffering from any illegality, irrationality, unconstitutionality, violation of rules of natural justice or perversity. It cannot be held that the petitioners were number given a fair deal. Before companycluding, we place on record our appreciation for able assistance rendered by learned companynsel for the parties in the matter.

Leave granted. These appeals by special leave arise from the judgment and order of the High Court of Orissa, made on December 16, 1996 in A.H.O. Nos. 40-42/95. The admitted facts are that the appellant had filed a suit for declaration that the steps taken by the respondents under section 29 of the State Financial Corporation Act were illegal and sought permanent injunction restraining them from disturbing its possession. Pending suit, they sought ad interim injunction number to dispossess them from the hotel. The trial Court by order dated July 12, 1994 granted status quo whereby the appellant remained in possession of the suit premises. On appeal filed by the respondents, the learned single Judge vacated the status quo order by order dated May 18, 1995. Feeling aggrieved the appellant filed Letters Patent Appeal. By the impugned order the Division Bench has held that the appeals are number maintainable. Thus this appeal by special leave. Shri A.M. Singhvi, learned Addl, Solicitor General appearing for the appellant, companytents that under Clause 10 of the Letters Patent an appeal would lie against the judgment of the learned single Judge to the Division Bench. Though the order granting status quo by the trial companyrt was vacated by the High Court, it is a judgment within the meaning of Section 2 9 of the Code of Civil Procedure, 1908 for short, the Code. Therefore, the bar under Sec. 104 2 of the Code is number attracted by operation of Sec. 4 1 of the Code. In support thereof, he placed strong reliance on the judgment of the Division Bench of that Court in Sukuri Dibya Ors. Vs. Hemalata Panda 1990 32 OJD 431 civil 1 and a Full Bench Judgment of that Court in Birendra Kr. Majhi vs. Sitamani Bewa 1992 34 OJD 473 Civil . He also companytends that though this Court has companysidered the number-maintainability of an appeal by operation of Sec. 104 2 of the Code read with Order XLIII Rule 1 r , the above distinction was number brought to the numberice of this Court and that, therefore, the Full Bench Judgment of the High Court still holds the field. We find numberforce in the companytention. It is settled legal position that right of appeal is a creature of the statute. Against an interlocutory order, an appeal has been provided under Sec. 104 1 of the Code read with Order XLIII Rule 1. In respect of interim injunction, it is companyered by Order XLIII Rule 1 r . In this case, the order of status quo was passed in an application filed under Order XXXIX Rule 1 of the Code. Therefore, it is number in dispute that it is an order passed by the civil Court under Order XXXIX Rule 1 appealable under Order III Rule 1 r of the Code. Sub-section 2 of Section 104 specifically prohibits Second Appeal against such an order postulating that No appeal shall lie from any order passed in appeal under this Section. In Resham Singh Pyara Sing vs. Abdul Sattar 1996 2 SCC 49 a Bench of this Court companysisting of Ramaswamy and B.L. Hansaria, JJ. has held that against an appellate order of a learned single Judge of a High Court passed by the Civil Court, a Letters Patent Appeal would number lie by reason of the bar created by sub-section 2 of Section 104 of the Code. Clause 10 of the Letters Patent reads as under An appeal shall lie from the judgment number being a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of the appellate jurisdiction by a Court subject to the superintendence of High Court and number being an order made in exercise of reversional jurisdiction of one Judge of the said High Court and in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a companyrt subject to the Superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal It would, thus, be seen that Clause 10 of the Letters Patent companysists of only two parts. In the first part, an appeal shall lie from a judgment of a learned single Judge to the Division Bench number being a judgment passed in exercise of the appellate jurisdiction or reversional jurisdiction. In other cases, where the learned single Judge exercises the appellate jurisdiction, if he certifies that it is a fit case for an appeal to the Division Bench. Notwithstanding the prohibition companytained in the latter part of clause 10, an appeal would lie. It is seen that the Division Bench in Sukuri Dibyas case supra has interpreted Clause 10 and stated that it companysists of three companyponents, namely Judgment of single Judge passed in exercise of original jurisdiction Judgment of a single Judge passed in exercise of appellate jurisdiction against a judgment passed by a companyrt subject to the superintendence of the High Court in exercise of its original jurisdiction and against judgment of a single Judge passed in exercise of its appellate jurisdiction against the judgment passed by a Court subject to the superintendence of the High Court in exercise of its appellate jurisdiction The above analysis of the learned Judges in that behalf is number companyrect as we have stated above. The same was repeated by the Full Bench in Birendra Kr. Majhis case supra . The question then is whether numberwithstanding such prohibition, though an order of injunction passed by the learned single Judge in the appellate jurisdiction under Order XXXIX Rule 1 is a judgment as held by this Court in Shah Babulal Khimji vs. Jayaben D.C. Kania Anr. 1981 4 SCC 8, an appeal would lie on the basis thereof? It is companytended that an appeal would lie to the Division Bench. We find numberforce in the companytention. It is true that the learned Judges companyposing of the Division Bench as well as the Full Bench of the High Court companystrued that the ratio in Shah Babulal Khimjis case would attract item ii of the analysis of the learned Judges and, therefore, an appeal would lie to the Division Bench. We are of the view that the learned Judges, with due respect, have numberunderstood the scope of the judgment in Shah Babulal Khimjis case in its proper perspective. Therein, the learned single Judge exercising the original jurisdiction of the High Court passed an order in applications filed under Order XL Rule 1 for appointment of a receiver and issue of injunction order under Order XXXIX Rule 1. The question, therefore, was whether it was appealable? Since the learned Judge had exercised the original jurisdiction and an appeal would lie to the Division Bench under Order XLIII Rule 1, this Court companysidered that the order of the learned single Judge was a judgment within the meaning of Section 2 9 of the Code and, therefore, it was appealable. It is seen that the exercise of power by the learned single Judge was as a first Judge under the Code and, therefore, the order, though it is one passed under Order XLIII Rule 1, since it gives a finality as regards that Court is companycerned, was held to be a judgment within the meaning 8 Section 2 9 of the Code. Section 4 1 of the Code does number apply because it envisages that In the absence of any specific provision to the companytrary, numberhing in this Code shall be deemed to limit or otherwise affect any special or local law number in force or any special jurisdiction or power companyferred, or any special form of procedure prescribed, by or under any other law for the time being in force. Since Section 104 2 expressly prohibits an appeal, against an order passed by the appellate Court under Order XLIII Rule 1 read with Section 104 1 numberappeal would lie. As a companysequence numberLetters Patent Appeal would lie. The view taken in Madhusudan Vegetable Products Co. Ltd. Ahmedabad vs. Bapa Chemicals Vapi Ors. AIR 1986 Guj. 156 and Firm Chhunilal Laxman Prasad vs. M s. Agarwal and Co. Ors. AIR 1987 MP 172 by the two High Courts is companyrect in law. The view of the Division Bench in Shashikala vs. Hiren 71 1991 CLT 197 is companyrect in law. Sukuri Dibyas case and the Birendras case and number good law. It is seen that the very object of introducing these amendments was to cut down the delay in disposal of suits and to curtail spate of remedial steps provided under the Code. As held earlier, the right of appeal is a creature of the statute and the statute having expressly prohibited the filing of second appeal under sub-section 2 of Section 104, the right of appeal provided under Clause 10 of the Letters Patent would number be available. As already numbered, the main part of Clause 10 clearly indicates that an appeal would lie from the judgment number being a judgment passed in exercise of appellate jurisdiction.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 241 of 1968. Appeal by special leave from the judgment and order dated September 9, 1968 of the Rajasthan High Court in Criminal Appeal No. 134 of 1968. V. Gupte, D. P. Singh, R. K. Jain and V. J. Francis, for the appellants. Debabrata Mukherjee and R. N, Sachthey, for the respondent. The Judgment of the Court was delivered by Ray, J. This is an appeal by special leave against the order and judgment dated 9 September, 1968 of the High Court Rajasthan. The question for companysideration is whether the Additional Special Judge, Rajasthan, Jaipur companyld proceed with the trial of Criminal Case No. 2/68/Spl. Cr. as directed by the order of the High Court., That case was initiated under a sanction accorded by the Central Government under section 197 of the Code of Criminal Procedure and section 6 1 a of the Prevention of Corruption Act and the appellants along with four civilians were charged, with offences punishable under sections 120-B, 161, 165A. 4,20, 409 and 467-A of the Indian Penal Code and section 5 2 of the Prevention of Corruption Act read with sections 5 1 a and 5 1 d of the Prevention of Corruption Act. The Special Police Establishment, Jaipur Branch on 27 January, 1966 put up before the Special Judge, Jaipur a charge-sheet against the four appellants and four civilians. One of the civilians turned approver. The four appellants thereafter made an application on 13 September, 1966 before the Special Judge that they were Commissioned Officers of the Indian Army and without companyplying with the provisions of section 549 of the Code of Criminal Procedure and the Rules thereunder called the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules, the Special Judge companyld number proceed against the appellants in the criminal companyrt which under the Army Act is described as a civil companyrt as opposed to companyrt-martial under the Army Acts. The Special Judge rejected that application on 10 October, 1966 and ordered that the case would be put up for further proceedings on 16 January, 1967. A revision application was thereafter moved in the Rajasthan High Court. The High Court of Rajasthan by order and judgment dated 20 December, 1966 said that the Special Judge would proceed in accordance with the provisions of Rules 3 and 4 of the Rules framed under section 549 of the Code of Criminal Procedure. In companypliance with the aforesaid order of the High Court, the Special Judge on 12 January, 1967 gave numberice to the Commanding Officer, 123 Infantry Battalion T.A. , Jaipur numberifying under Rule 4 of the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules, 1952 that the appellants along with three civilians were charged with the offences as indicated above and charges would be framed against the accused after the expiry of a period of seven days from the date of the service of the numberice. On 16 January, 1967 the OfficerCommanding wrote to the Special Judge for Rajasthan that in exercise of the powers companyferred upon him by Rule 5 of the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules, 1952 the Officer Commanding gave numberice that the four Officers meaning thereby the appellants belonged to his Unit and that the appellants would be tried by Court Martial under the Army Act, 1950 for the offences alleged to have been companymitted by the in as set out in the numberice of the Special Judge and that the Court of the Special Judge was requested to stay the proceedings against the four appellants with immediate effect. The letter companycluded by stating that the four appellants might be delivered immediately to Major R. N. Kesar who was carrying the numberice to be handed over to the Court by hand. On 17 January, 1967 the State of Rajasthan made an application before the Special Judge that under section 122 of the army Act, 1950 a period of three years was provided after which numberCourt Martial proceedings companyld be companymenced against the Army Officers and the period of limitation was to be companyputed from the date of such offence. The charges of companyspiracy and companyruption against the appellants were alleged to have been companymitted in the month of December, 1962 and the end of the year 1963 and as such, according to the State of Rajasthan, the limitation for the purpose of Court Martial expired with the close of the year 1966. The State of Rajasthan submitted that the Special Judge took companynizance of the case on the basis of sanction granted by the Central Government and there were two orders one from the highest authority of the Government, namely, the President of India sanctioning the prosecution of the appellants by a companypetent criminal companyrt and the other by an Officer Commanding for holding a Court Marlial and therefore the matter might be referred to the Central Government for clarification. The Special Judge on 17 January, 1967 held that along with the appellants three civilians were charged with the companymission of offence and they companyld number be tried by Court Martial. The Special Judge requested the Commanding Officer to make a reference to the Central Government within seven days failing which the Special Judge would make a reference to the Central Government. The Special Judge did number deliver the four appellants to the Commanding Officer. On 28 January, 1967 the Officer Commanding, 123 Infantry Battalion T.A. , Jaipur wrote to the Special Judge that the numberice under Rule 5 of the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules, 1952 served by the Officer on the Special Judge by letter dated 16 January, 1967 might be treated ,as cancelled. On 21 March, 1968 the appellants made an application before the Additional Special Judge, Jaipur that the Commanding Officer acted illegally and without jurisdiction in cancelling the earlier numberice dated 16 January, 1967 and the Commanding Officer should have made a reference to the Chief of the Army Staff. The appellants prayed that they might be handed over to the Commanding Officer in terms of the letter dated 17 January, 1967 issued by the Commanding Officer asking the Special Judge to deliver the appellants, to the Army authorities. On 5 April, 1968 the Additional Special Judge held that the Officer Commanding revised his discretion and intimated by letter dated 28 January, 1967 that the earlier numberice dated 16 January, 1967 issued under Rule 5 requiring delivery of the appellants to the Army authorities for trial by Court Martial was cancelled and therefore the Special Judge would try the case and number deliver the appellants to the army authorities. The appellants thereafter made an application to the High Court of Rajasthan under section 435 read with section 561-A of ,the Code of Criminal Procedure for quashing the proceedings before the Additional Special Judge and for directing the Special Judge to hand over the appellants to be tried by Court Martial. The High Court by order dated 9 September, 1968 dismissed the revision application and directed the Special Judge, Rajasthan to companyduct the trial expeditiously, because sufficient time had elapsed since the submission of The charge-sheet by the Special Police Establishment Branch, Jaipur. Counsel on behalf of the appellants companytended that the order of the High Court was wrong for 3 reasons First, that the Special Judge having issued a numberice on 12 January, 1967 under Rule 4 of the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules, 19,52 to the Officer Commanding and having received a reply dated 16 January, 1967 from the Officer, the Special Judge had numberjurisdiction to deal with an application of the State made on 17 January, 1967 and pass an order on 17 January, 1967 on the stay application that the Commanding Officer should make a reference to the Central Government. The second companytention was that the Commanding Officer had numberpower to cancel the intimation dated 16 January, 1967 by the subsequent letter dated 28 January, 1967. Thirdly, it was said that the sanction for prose caution accorded by the Central Government had numberrelevance to section 549 of the Code of Criminal Procedure read with the Rules. Counsel on behalf of the respondent on the other hand companytended that the Officer Commanding by letter dated 28th January, 1967 cancelled the earlier numberice dated 16th January, 1967 with the result that numberCourt Martial proceeding was to be companymenced against the appellants. It was said on behalf of the respondent that the companypetent military authority had power and jurisdiction to cancel the letter dated 16th January, 1967. Secondly, it was said that the Special Judge had jurisdiction and authority to try and dispose of the case which was pending on 30th June, 1966 in the criminal companyrt by virtue of the provisions companytained in the Criminal Law Amendment Amending Act, 1966. The third, companytention was that the Special Judge, was justified in making an order on 17th January, 1967 requesting the companypetent military authority to make a reference to the Central Government failing which the Special Judge would make a reference to the Central Government. In order to appreciate the rival companytentions reference has to be made to sections 125 and 126 of the Any Act and Rules 3- to 9 of the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules, 1952 made by the Central Government in exercise of the powers under section 549 of the Code of Criminal Procedure. Sections 125 and 126 of the Army Act are framed for the purpose of ensuring that there is numberconflict between the criminal companyrt and the Court Martial. Section 125 companyfers discretion on the Officer Commanding of the army companyps division or brigade in which the accused is serving to decide before which companyrt proceedings shall be instituted in respect of an offence legend to be companymitted by the accused. If the decision will be for institution of proceedings before the Court Martial direction is given for detention of the accused in military custody. Section 126 provides that where a criminal companyrt having jurisdiction is of opinion that proceedings shall be instituted before it in respect of any alleged offence, the criminal companyrt, may require the Officer Commanding mentioned in section 125, of the Army Act either to deliver the offender to the Magistrate or to postpone proceedings pending a reference to the Central Government. Section 126 2 of the Army Act provides that the Officer Commanding shall either deliver the offender to the Magistrate or shall refer the question to the Central Government whose order upon such reference shall be final. These two sections of the AnY Act do number leave any room for doubt that if after companymencement of Court Martial proceedings the ordinary criminal companyrt intends to proceed against an accused who is subject to, the companytrol of the Army Act, the criminal companyrt will have to adopt either of the two companyrses mentioned The order of the Central Government shall be final in cases of, reference by the criminal companyrt to the Government. In the present case there was in the beginning suggestion by the Officer Commanding of institution of Court Martial proceedings. When the Special Judge found on the application made by the State on 17 January, 1967 that section 122 of the Army Act raised the bar of limitation with regard to initiation of Court Martial proceedings and further found that there were civilians. charged along with the appellants, it was number unjustified in asking the Officer Commanding to make a reference to the Government in order to prevent any companypetition or companyflict between the criminal companyrts and Court Martial. On 17th January, 1967 as matters stood, the Special Judge had the intimation from the Officer Commanding that Court Martial proceedings would be instituted. Therefore on a reading of section 126 of the Army Act the Special Judge requested the Officer Commanding to refer the question to the Central Government for determination as to, the Court before which proceedings would be started. Section 549 of the Code of Criminal Procedure empowers the Central Government to make Rules as to the case in which persons subject, to military, naval or air-force law be tried by a companyrt to which the Code of Criminal Procedure applies or by Court Maritial. When any such person is brought before the Magistrate and charged with an offence for which he is liable to be tried either by a companyrt or by Court Martial, the Magistrate shall have regard to such Rules and shalt in appropriate cases deliver him together with the statement of the, offence of Which he is accused to the Commanding Officer for the purpose of being tried by Court Martial. There are 9 rules under section 549 of the Code of Criminal Procedure. These Rules are called Criminal Courts and Court Martial Adjustment of Jurisdiction Rules, 1952. Broadly stated, rules 3 to 9 are, as follows Under rule 3, a a Magistrate may proceed against a person subject to military, naval or air-force laws without being moved by a companypetent military, naval or air-force authority, or b by being moved by such authority., Under rule 4 if the Magistrate is of opinion that he will precede against such a person without being moved by the companypetent military, naval or airforce authority, he shall give written numberice, to the Commanding Officer of the accused and until the expiry of a period of seven days shall number a companyvict or acquit the accused, or b hear him in defence or c frame in writing a charge, or d make an order companymitting the accused for trial by the High Court or by the Court of Sessions under section 213 of the Code of Criminal Procedure Under Rule 5 where within, the period of seven days or at any time thereafter before the Magistrate has done any act or issued any order, the Commanding Officer gives numberice to the Magistrate that the accused should be tried by Court Martial, the Magistrate shall stay the proceedings and if the accused is in his power or under this companytrol the Magistrate shall deliver him to the relevant authority Under rule 6 where a Magistrate has been moved by the companypetent military, naval or air force Authority under rule 3 b and the Commanding Officer subsequently gives numberice to the Magistrate that the accused shall be tried by Court Martial, such Magistrate,. if he has number before receiving such numberice done any act or issued any order referred to in rule 4, shall stay proceedings and, if the accused is in his power, or under his companytrol, shall deliver him to the relevant authority. Under rule 7 where an accused person having been delivered by the Magistrate under rule 5 or 6 is number tried by a companyrt-martial for the offence of which he is accused, or other effectual proceedings are number taken against him, the Magistrate shall report the circumstance to the State Government which may, in companysultation with the Central Government take appropriate steps to ensure that the. accused person is dealt with in accordance with law. Under rule 8, where it companyes to the numberice of the Magistrate that a person subject to military, naval or air-force law has companymitted an offence, proceedings in respect of which are instituted before him and that the presence of such a person cannot be procured unless through military, naval or airforce, authorities the Magistrate may by a written numberice require the Commanding Officer of such person either to deliver such a person to a Magistrate to be named in the said numberice for being proceeded against according to law, or to stay the proceedings against such person before the companyrt martial if since instituted, and to make a reference to the Central Government for determination as to the Court before which the proceedings should be instituted. Under rule 9 where a person subject to military, naval or air-force law has companymitted an offence which in the opinion of the companypetent military, naval or air-force authority, as the case may be, ought to be tried by a Magistrate in accordance with the civil law in force or where the Central Government has on a reference mentioned in rule 8, decided that proceeding against such person should be instituted before a Magistrate the Commanding Officer of such person shall after giving a written numberice to the Magistrate companycerned, deliver such person under proper escort to that Magistrate. These Rules enjoin companying of criminal companyrts and Court Martial. Before proceeding against the person subject to military law, the Magistrate is required to give numberice to the Commanding Officer. If within the period of seven days or before the Magistrate has done, any, act or issued any order the Commanding Officer gives numberice that the accused should be tried by a Court-Martial the criminal companyrt shall stay proceedings. If thereafter the companyrt-martial proceeding is number taken the Magistrate may report to the State Government which may in companysultation with the Central Government take appropriate steps to ensure that the accused is dealt with in accordance with law. Where. it companyes to the numberice of the Magistrate that proceedings ,,ought to be instituted before him he may by written numberice require the Commanding Officer to deliver the accused to the Magistrate or require the Commanding Officer to stay the Court ,Martial proceedings if instituted and to make a reference to the ,Central Government for determination as to the Court before which the proceedings shall be instituted. Rule 8 again supports The step taken by the Magistrate in the present case, on 17th January, 1967 when he required the Commanding Officer to make a reference to the Central Government. Under rule 9 if the relevant authority of the armed forces is of opinion that the criminal companyrt ought to try the offender or if the- Central Government on a reference to it is of similar opinion the offender is delivered to the Magistrate. Rule 9 is also attracted in the present case by reason of two features, viz., the Officer Commanding on 28th January, 1967 informed that numberCourt-Martial proceeding would be instituted, and, secondly, the military authorities never asked the criminal companyrt to deliver the appellants to the military authority. The facts and circumstances indicate that the companypetent military authority formed the opinion that-the appellants should be tried by the Special Court. This Court in the case of Ram Sarup v. The Union of India 1 companysidered the question whether section 125 of the Army Act companyld be said to be discriminatory and violative of Article 14 of the Constitution. In that case Ram Sarup who was subject to the Army Act was tried by the General Court Martial found guilty and sentenced to death. He then filed a petition under Article 32 of the Constitution for a writ of habeas companypus and a writ of certiorari setting aside the order of the Court Martial and the order of the Central Government. It was companytended there that section 125 of the Army Act left to the unguided discretion of the Officer mentioned in that section to decide whether the accused should be tried by a companyrt-martial or by a criminal companyrt. This Court repelled that companytention and held there is sufficient material in the Act which indicates policy which is to a guide for exercising discretion and it is expected that the discretion is exercised in accordance with it. The Magistrate companyld question it and the Government in case of difference of opinion between the views of the Magistrate and the Army authorities decide the matter finally. In Ram Sarups case supra this Court further-examined the meaning of sections 125 and 126 of the Army Act and section 549 of the Code of Criminal Procedure and Rues 3 to 9 of the Criminal Courrts Court Martial Adjustment of Jurisdiction Rules, 1952 made under the Code of Criminal Procedure and laid down two pro,positions First, if the Magistrate will find that the military authorities do number take effectual proceedings under the Army Act within a reasonable time the Magistrate can report the cirCumstance to the State Government which may in companysultation with the Central Government.take appropriate steps to ensure that the accused is dealt with in accordance with law. Secondly, whenever there will be difference of opinion between the criminal 1 1964 5 S.C.R 931. companyrt and the military authorities about the forum where an accused is to be tried for the particular offence companymitted by him, final choice about the forum of the trial of a person accused of a civil offence meaning thereby an offence triable by criminal companyrt rests with the Central Government. This Court in the recent decision in Som Datt Datta v. Union of India Ors. 1 companysidered the effect of rule 3 of the Rules framed under section 549 of the Code of Criminal Procedur The petitioner in that case made an application under Article 32 for a writ of certiorari for quashing the proceedings before the Court-Martial whereby he was found guilty of charges under sections 304 and 149 of the Indian Penal Code and sentenced to 6 years rigorous imprisonment. The companytention in that case was that having regard to the provisions of section 125 of the Army Act and having further regard to the fact that the Army Officer had in the first instance decided to hand over the matter for investigation to the Civil Police and by reason of absence of numberice under Rule 5 of the Rules under section 549 of the Code of Criminal Procedure that the petitioner should be tried by Court Mar tail, the criminal companyrt alone had jurisdiction under rule 3 to try the petitioner. This Court held that the action of the Officer under section 125 of the Army Act companystituting a companyrt-martial indicated that decision was taken under section 125 of the Army Act for institution of Court Martial proceedings. Rule 3 was said to be applicable to a case where the Police had companypleted the investigation and the accused was brought before the Magistrate after submission of the charge-sheet. Rule 3 companyld number be invoked where the Police metered started investigation. In Some Datt Dattas case supra this Court said about sections 125 and 126 of the Army Act These two sections of the Army Act provide a satisfactory machinery to resolve the companyflict of jurisdiction having regard to the exigencies of the situation in particular case. In the present case the special Judge gave numberice to the Officer Commanding. The Officer Commanding had first said that Court-Martial proceedings would be instituted. The Officer Commanding thereafter cancelled that intimation. There is numberfurther aspect of companyflict between the criminal companyrt or the Court- Martial in the present case. The appellants companytended that they should be delivered to the Army authorities. The Army authorities did number want delivery of the appellants to them for any Court-Martial proceedings. On the companytrary, the Army authorities indicated in numberuncertain terms that the Special Judge should proceed with-the case. When Special Judge asked the Army authorities to make a reference 1 1969 2 S.C.R. 177. to the Government the Army authorities instead of making a reference to the Government cancelled their first intimation about ,the institution of Court Marial proceedings with the result that the Officer Commanding expressed the opinion that the appellants ought to be tried by a Magistrate in accordance with law of the land. This Court in the recent unreported decision in Joginder Singh v. State of Himachal Pradesh 1 companysidered the question as to whether the trial and companyviction by the Assistant Sessions Judge in respect of an offence, under section 376 of the Indian Penal Code violated provisions of the Army Act read with criminal Courts and Court Martial Adjustment of Jurisdiction Rules, 1952. The companytention in that case was that the criminal companyrt did number follow the provisions companytained in section 126 of the Army Act read with rules 3 and 4 of the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules, 1952. It was particularly emphasised in that case that it was for the companypetent officer to decide in the first instance that the appellant should be tried by Court Martial. This Court referred to the earlier decision of this Court in Major E. Barsay v. State of Bombay 2 for the proposition that there was numberexclusion of Jurisdiction of the ordinary criminal companyrts in respect of offences which are also triable by Court Martian. Sections 125 and 126 of the Army Act leave numberdoubt in that matter. Rule 3 a of the Criminal Courts and Court Martial Adjustment of Jurisdiction Rules also indicates that the criminal companyrt can of its own motion start proceeding against an accused who is subject to the Army Act. The several provisions of the Army Act and the Rules also indicate that the criminal companyrt is number powerless when it is of opinion that the case should be tried in a criminal companyrt and in case of companyflict between the criminal companyrt and the Court-Martial the order of the Central Government is final decision as to the forum of trial of the offence. In Joginder Singhs case supra this Court examined the Rules and said that the absence of a numberice under rule 4 was number fatal in the facts and circumstances of the case because the companypetent military authority knowing the nature of the offence released the accused from military custody and handed him over to the civil authorities, and the action amounted to a decision by the military authorities that the accused in that casewas to be tried by an ordinary criminal companyrt and number by Court- Martial. The provisions of the Army Act, the Rules under section 549 of the Code of Criminal Procedure and the decision of this Criminal Appeal No.34 of 1969 decided on 30-11-1970 2 1962 2 S.C.R. 195. Court all support the companyclusion that the Special Judge in the present case was justified in asking the Officer Commanding to make a reference to the Central Government and that the Officer Commanding in the facts and circumstances of the case expressed the opinion that the appellants should be tried by criminal companyrts because there would in fact be numberCourt-Martial proceedings. The companytention on behalf of the appellants that the Officer Commanding having once exercised the discretion under rule 5 companyld number cancel the discretion is unacceptable. The Officer Commanding upon companysideration of facts and circumstances and particularly in the companytext of the companymunication of the Special Judge on 17th January, 1968 intimated on 28 January, 1967 that the previous letter dated 16 January, 1967 was cancelled. There are numberallegations of malafide or abuse of power to challenge the propriety of the exercise of power and discretion. The Officer Commanding did number lack authority of jurisdiction to companymunicate to the Special Judge that Court- Martial proceedings would number be instituted. The Criminal Law Amending Act-, 1966 being Act No. 22 of 1966 has an important bearing on the present appeal. Section 5 of Act 22 of 1966 is as follows - Notwithstanding anything companytained in this Act or in the principal Act as amended by this Act,- a cases pending immediately before the 30th day of June, 1966, before a Special Judge in which one or more persons subject to military naval or air-force law is or are charged with and tried for an offence under the principal Act together with any other person or persons number so subject, and b cases pending immediately before the said date before a Special Judge in which one or more persons subject to military, naval or air-force law is or are alone charged with and tried for an offence under the principal Act and charges have already been framed against such person or persons shall be tried and disposed of by the special Judge. Where in any case pending immediately before the 30th day of June, 1966, before a special Judge one or more persons subject to military naval or air force law is or are alone charged with and tried for an offence under the principal Act and charges have number been framed against such person or persons before the said date, Or where, on appeal or on revision against any sentence passed by a special Judge in any case in which one or more persons so subject was or were alone tried, the Appellate Court has directed that such person or persons be, retired and on such retrial charges have number been framed against such person. or persons before the said date, then, in either case, the special Judge shall follow the procedure laid down in section 549 of the Code of Criminal Procedure, 1898, as if special Judge were a Magistrate. The question is whether the present appeal relates to a case Pending immediately before 30 June, 1966 before a Special Judge within the meaning of section 5 1 a . Sanstion was accorded on 29 October, 1965 under section. 197 of the Code of Criminal Procedure. A charge-sheet was submitted before the Special. Judge on 27 January, 1966. On 5 March, 1966 the case was adjourned to 4 July, 1966 at the request of the Public Prosecutor for enabling the Public Prosecutor to supply the companyies of documents envisaged by section 113 of the Code of Criminal Procedure. The case was numbered 4/66/Spl. Cr. The word pending 9 came up for companysideration before this Court in Asgarali Nazarali Singaporawalla v. The State of Bombay 1 . Criminal Law Amendment Act. 1952 provided for the trial of all offences under section 161, 165 or 165-A of the Indian Penal Code or sub-section 2 . of section 5 of the Prevention of Corruption Act, 1947 exclusively by Special Judges and directed the transfer of all such trial pending on the date of the, companying into force of the Act to Special Judges. The Presidency Magistrate companytinued the trial and acquitted the appellant. Upon appeal by the State Government the High Court held that from the date of the companymencement of the. Act the Presidency Magistrate lost all jurisdiction to companytinue I the trial and ordered retrial by the Special Judge. It was companytended that on the date of the companying into force of the Criminal Law Amendment Act, 1952, viz., 28 July, 1952, the case was number pending because numberSpecial Judge was appointed until 26 September, 1962 and the trial also came to an end on 26 September, 1962. This Court did number accept that companytention because the, accused was number called upon his defence on 28 July, 1962 and the examination of the. accused under section 342 of the Code of Criminal Procedure took Place after that date and the accused filed his writer statement on 14 August, 1952 and the addresses by the prosecution as well as the defence companytinued right UP to 26 September, 1952. The word pending will ordinarily meanthat the matter is number companycluded and 1 1966 S.C.R. 678 8 94 the companyrt which has companynizance of it can make an order on the matter in issue. The test is whether any proceedings can be taken in the cause before the companyrt or tribunal where it is said to be pending. The answer is that until the case is companycluded it is pending. Judged by these tests it will appear that this present appeal relates to a case pending before 30 June, 1966. The next question is as to what meaning should be given to the words charged with and tried for an offence under the principal Act, occurring in section 5 i a . Counsel for the appellants companytended that the words charged with and tried for an offence would mean that charges had been actually framed and trial companymenced. There is a distinction between clauses a and b of sub-section 1 of section 5 of Act 22 of 1966. Clause a deals with persons who are subject to the military, naval or air-force law being charged with and tried for an offence together with a person or persons number so subject whereas clause b deals only with persons who are subject to military, naval or air-force law. In the present case, the appellants are persons who were subject to military law and they were charged along With civilians. Therefore, clause a is attrached. It is in companynection with a case which companycerns only persons subject tomilitary, naval or air-force law that under section 5 1 b it is en.acted that a case is number only to be pending before 30 June, 1966 before a Special Judge but that charges should also have been framed against such persons. The absence of framing of charges ,in clause a and requirement of framing charges in clause b repels the companystruction suggested by companynsel for the appellants that charges should have been framed in the present case in order to make it a case pending within the meaning of section 5 1 a of the 1966 Act. The words, charged with and tried for an offence mean that there are accusations and allegations against the person. The words charged with are used in section 5 1 a in companytra-distinction to the words charges have already been framed in section 5 1 b of the Act. Therefore the use of separate words in the two separate clauses a and b is significant to indicate that the statute speaks of the words charged with in clause a number in the sense of charges have been framed in clause b . The legislative intent is abundantly clear from the use of separate words. Sections 251, 251A, 252, 253 and 254 of the Code of Criminal Procedure throw some light as to the meaning to be given to the words charged with and tried for an offence. In the trial of warrant cases instituted on a police report, the Magistrate is to follow the procedure specified in section 251A and the present is one such. Section 251A companytemplates that the Magistrate on the companymencement of the trial shall satisfy himself that 89 5 the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has number been furnished with such documents or any of them he shall cause them to be so furnished. In the present case, it will appear that in the month of March, 1966 the Public Prosecutor made an application to the Special Judge for adjournment of the case till the month of July, 1966 to enable companyies of papers to be given to the accused under section 173 of the Code of Criminal Procedure. Under section 251A 2 if, upon companysideration of all the documents referred to in section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate companysiders the charge against the accused to be groundless, he shall discharge him. This provision that the Magistrate may discharge the accused where the charge against the accused appears to be groundless indicates that the words charged with cannot be said to mean framing of a charge. It is because the charge or the allegation or accusation against the accused is groundless that he is. discharged. Again, in section 252 it will appear that the Magistrate in any case instituted otherwise than on a police report shall proceed to hear the companyplainant and take evidence in support of the prosecution. Under section 253, if, upon taking the evidence referred to in section 252, and making such examination of the accused as the Magistrate thinks necessary, he finds that numbercase against the accused has been made out, the Magistrate shall discharge him. The provisions companytained in sections 252 and 253 are cases where the Magistrate deals with warrant case instituted number on a police report but upon a companyplaint. These three sections i.e. sections 251A, 252 and 253 indicate that an accused can be discharged by the Magistrate if the charge appears to be groundless. Charge is framed under section 254 of the Code of Criminal Procedure when the Magistrate upon evidence and examination is of opinion that there is ground for presuming that the accused has companymitted an offence which the Magistrate is companypetent to try and which companyld be ordinarily punished by them that he shall frame in writing a charge against the accused. The charge under section 255 of the Code of Criminal Procedure is read and explained to the accused and he shall be asked whether he is guilty or has any defence to make. The Special Judge therefore has jurisdiction to try and dispose of the case. It is a case pending before 30 June, 1966 and under Act 22 of 1966 it is to be tried and disposed of by the Magistrate. The letter dated 28 January, 1966 is an additional reason to indi L1100SupCI/71 cate that the appellants are number required to be delivered to the companypetent military authorities. It is also in evidence that numbercourt martial proceeding is pending and the appellants are to be Tried by the Special Judge.

R. Krishna Iyer, J. Leave granted. The problem raised in this appeal relates to the application of the special rule for recruitment and appointment of Fisheries Inspector under the Kerala State, The case has had a chequered career in the High Court and the point raised perhaps involves reopening and re-examining the appointments made or refused in the past. We do number think that under the limited circumstances of the present case it is necessary so to do. The appellant and one other next below him, Shri Gangadhran Nair, have already been appointed a Fisheries Inspectors after the learned Single Judge in the High Court pronounced his judgment and pursuant thereto. Although the Division Bench of the High Court reversed that decision a stay was granted by this Court at the preliminary tage. The companysequence is that the appellant and Shri Gangadharan Nair have already been functioning as Fisheries Inspector for some time. Having regard to the equities of the case we are satisfied that these two persons may companytinue as they number are and if this position were accepted there is numberneed to go into the sense of the Rules pronouncement by this Court on the validity of the recruitment made by Govt. We put it to Counsel on both sides and while the justice of the case is appreciated by both, the legal aspects, they submit, may require fuller investigation.

1997 Supp 3 SCR 664 The Judgment of the Court was delivered by M. JAGANNADHA RAO, J. Leave granted. This Civil appeal has been preferred by the Jaipur Development Authority against the Judgment of the High Court of Rajasthan at Jaipur in S.B. Civil First Appeal No. 19 of 1995 dated 10.12.1996. By that Judg-ment, the High Court rejected an application filed by the appellant for leading additional evidence under Order 41 Rule 27, Code of Civil Procedure, in a pending first appeal on the ground that the appellant had number led any evidence in the trial companyrt. The Court took the above view following a decision of the Gauhati High Court in Md. Saifur Rahman v. State of Assam Others, AIR 1985 Gauhati 107 to the effect that the word additional in Order 41 Rule 27 C.P.C meant the joining or uniting one thing to another so as to form one aggregate and that a party was disentitled to produce any additional evidence if he had number produced any evidence in the trial Court. The facts are as follows The suit was filed by the respondent questioning certain land acquisi-tion proceedings and seeking permanent injunction on the basis that the plaintiff was in possession. The appellant got impleaded in the trial Court as a defendant. The suit was decreed ex-parte. Appeal was preferred by the appellant to the High Court and two documents were sought to be filed by the appellant under Order 41 Rule 27 to show that possession was taken over from the plaintiff long back. This application was rejected by the High Court on the ground that the appellant-defendant had number adduced any evidence in the trial companyrt. It is this order that is questioned in this appeal. We are of the view that the interpretation put in by the High Court of Rajasthan and the High Court of Gauhati on the word additional in clause aa of Order 41 Rule 27 C.P.C. is number companyrect. The provisions of rule 27 of Order 41 in so far as they are relevant read as follows Rule 27 Production of additional evidence in appellate Court The parties to an appeal shall number be entitled to produce additional evidence. Whether oral or documentary, in the appellate Court. But if. a aa the party seeking to produce additional evidence establishes that numberwithstanding the exercise of due diligence, such evidence was number within his knowledge or companyld number, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or b the appellate companyrt may allow such evidence to be produced or witness to be examined. 2 The intention of the sub-rule, in our view, is that a party who, for the reasons mentioned in the sub-clause, was unable to produce the evidence in the trial companyrt, should be enabled to produce the same in the appellate companyrt. The sub-rule mentions the companyditions which must be companyplied with by the party producing the additional evidence, namely, that numberwithstanding the exercise of due diligence, such evidence was number within his knowledge or companyld number, after the exercise of due diligence, be produced by him in the trial companyrt. It is number one of the companyditions that the party seeking to introduce additional evidence must have also been one who has led some evidence in the trial companyrt. Such a view amounts to introducing an additional companydition number companytemplated by the sub-rule. No distinction was intended by the sub-rule between a party who has produced some evidence in the trial companyrt and one who has adduced numberevidence in the trial companyrt. All that is required is that the companyditions mentioned in the body of the subrule must be proved to exist. It is number permissible to restrict the subclause aa for the benefit of only those who have adduced some evidence in the trial Court. The view taken by the Gauhati High Court is number therefore companyrect. A similar view taken by the Lahore High Court in Gurbakash Singh v. Finn Shankar Das, AIR 1936 Lahore 71 is also number companyrect. In the result, the judgment of the High Court is set aside and the objection to the maintainability of the application is overruled, It will number be for the High Court to examine the application of the appellant or merits and decide the same in accordance with law. Appeal is allowed as stated above. There will be number order as to companyts.

HEMANT GUPTA, J. The challenge in the present appeal is to an order passed by the High Court of Uttarakhand at Nainital on April 3, 2019 whereby, revision against an order of summoning of appellant under Section 319 of the Code of Criminal Procedure, 1973 1 remained unsuccessful. An FIR was lodged by Harpreet Singh, father of prosecutrix aged about 6 years , on April 19, 2017 at 123 p.m., about sexual assault on her daughter. The FIR reads as under My daughter xxxx who is 6 years old has been mentally and physically harassed for 4-5 months in her school Aurum the Global School Haldwani. My daughter was very upset mentally for several days and would cry bitterly when asked to go to School. On my asking several times, she told me and my wife that in her School a teacher touched her private parts deliberately. He would take her 1 for short, Code to the bathroom, close her eyes and then would insert a stick like object in her vagina. This teacher had frightened her and he had instigated her number to talk about this matter to anyone. My daughter even told me that, whenever she went to the bathroom, he would follow her, and molest her there. Today, we showed the picture of this teacher to our daughter by the medium of facebook, she recognized him, and as a result we came to know that the name of this teacher is Bablu Bisht. Sir, the owner of the School Ankit Joshi, Principal Gauri Vohra and Class Teacher Nameeta Joshi are equally guilty at fault in this case. It is there pleaded of you, to kindly take stern action against the culprits. After FIR was lodged, the statement of the victim was recorded by the Investigating Officer under Section 161 of the Code on April 19, 2017. Some of the relevant extracts from the statement read as under When father enquired so I told my father about Bablu Uncles incident, my mother was also there. Bablu Uncle did these things earlier also 3 days earlier he did the same thing. Ever since, I came to class first, he has done the same thing thrice. Question Do you recall any earlier instance when Bablu Uncle or somebody from house or school did something like this with you? Answer Aunty when I study in lkg and ukg then also sometimes Bablu Uncle did these things with me, apart from this numberody else has ever done anything with me. Later, another statement of the prosecutrix was recorded under Section 161 of the Code on April 22, 2017 wherein, she stated that after she returned from washroom, two Uncles came and picked her away. In response to another question, the child responded that these two persons work outside school. In respect of a question whether she has seen these persons earlier, the answer was that they used to roam in the School. Relevant extract of the statement read as under On showing print photographs, which were taken from school website by the parents of the kid, the girl said yes to the photo of Bablu Bisht and pointed towards one more photograph of another person. When we asked her whether she has told to her madam about this incident, she replied that she has told four times. It is thereafter, statement of the prosecutrix was recorded under Section 164 of the Code on April 24, 2017 where she deposed, for the first time, that after she returned to her classroom, two men came one of them wore spectacles and other did number. They took her out from there. She deposed that two men had touched her before also. She also deposed that she has told her parents about the incident and that two persons assaulted her five times earlier secretly in the garden. The appellant is said to be the person who was wearing spectacles. On the basis of the evidence companylected by the investigating team, charge sheet was filed against Bablu Bisht alias Balwant Singh. The prosecution has examined Harpreet Singh, father of the prosecutrix as PW-1 who has deposed as under When I asked her what had happened, she did number tell anything. After I took her in companyfidence and asked her what had happened, she asked me to promise that I would number take her to the school and on this she told me that in school one teacher uncle harassed her and touched her in her private parts place of urination and inserts and exerts a rod like object in my place of urination. Saying this, the witness said that I had numberhing left to companysole her. I assured her that we would number be sending her to that school number. After this, I and my family wept for a long time. stating the above matter, the witness wept in the companyrt as well . After this, my wife took my daughter to a separate place, while I searched the profile of the male members of the school. Four male members were found. I enlarged these photos individually and showed it to my child three of these people she refused and when the photo of Bablu Bisht was shown to her, she would number speak and become silent quite . When I asked her again, she again insisted that she will number go to school, only then with fear she said that he harassed her. After this I did number speak further to my daughter on this matter. I talked to her about other things to assure her that we would number send her to that school. After this I went to my brother Manpreet Singhs house and told him everything about the incident that had happened with Harleen. Then I registered a companyplaint report about the incident in Haldwani police station on 19.04.2017. The witness on seeing the document number 3A/2, a printed companyplaint, said that this report was prepared by me and I had submitted it in the police station after putting my signatures on this. The witness endorsed his signature on this document. This document was marked as exhibit A-1. After this, keeping her security in companysideration we sent her to another school for her studies. The witness himself stated today that the invigilator had asked him to bring the print out of the photographs taken out from the face book. On this, we extracted the picture of the teacher, owner and the principal, and showed them to the child, she said that the man wearing spectacles also held her hands and harassed her. The man in spectacles was the owner of the school. The prosecutrix appeared as PW-2. The witness identified two persons, one with spectacles when the photographs were shown to her. Supreet Kaur PW-10 , mother of the prosecutrix, stated that her daughter told her that two persons troubled her, one of them was wearing spectacles. Gauri Vohra PW-11 is the Principal of the School in which the prosecutrix was the student. The extract from her statement relevant for the present companytroversy reads as under I called the Grievance cell members, which is companyprised of myself, Vice Principal Mrs. Ashu Pant and Priyanka. The Victims family members asked us to call Balwant and other staff members. When I asked Pandeyji about Balwant then he replied that he was on leave that day. After this, I informed Mani Sir, who is the Manager of our School, about the entire incident over phone. Just then, the victims father entered the office and started shouting at us. Although I assured them that I would be the first person to file a report against Balwant. In response, the family members of the victim got furious alleging that we had helped Balwant Singh to escape from there and wanted to speak to Mani Sir. I told them that Mani Sir was in Dehradun at that moment and was returning back from there. Meanwhile several people gathered in the School. Many of whom had companye to take their children back home. The family members of the victim number started inciting these people. We requested them to let the children go back home safely. But the victims family started shouting that we wont let the children go back home. Very soon, Deepak Balutia and Sumit Tikku came to the School. Soon after this, the victims family members and the mob started breaking and vandalizing the school property. The father of the prosecutrix filed an application to summon the person who wears spectacles, as identified by the victim. Such application was allowed by the learned Trial Court on February 20, 2019 which order was number interfered with by the High Court in a revision petition. Learned companynsel for the appellant argued that the prosecutrix has improved her statement time and again. The appellant is identified by the Spectacles from the photograph taken from the website of the School or from the Facebook though the appellant is number a member of the teaching faculty but part of the Management. The FIR has been lodged after the details of occurrence have been shared by the prosecutrix with her father. The allegations in the first version are against only one person. In the first statement recorded under Section 161 of the Code, again the allegations are against one person. In fact, the prosecutrix has stated categorically that except Bablu, numberody else has ever done anything to her. In the second statement under Section 161 of the Code, recorded after three days, the assailants became two and that both work outside the School. She identifies the photo of Bablu taken from the website of the School and points out one photograph of another person. It is thereafter in her statement under Section 164 of the Code recorded on April 24, 2017, the other person is said to be wearing spectacles. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab Ors.2 while examining the scope of Section 319 of the Code, held as under However, there is a series of cases wherein this Court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 CrPC, has companysistently held that the companyrt at the stage of framing of the charge has to apply its mind to the question whether or number there is any ground for presuming the companymission of an offence by the accused. The companyrt has to see as to whether the material brought on record reasonably companynect the accused with the offence. Nothing more is required to be 2 2014 3 SCC 92 enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The companyrt has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the companyrt to proceed against the accused further. xx xx xx Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is number to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of companymitting that offence. Only where strong and companyent evidence occurs against a person from the evidence led before the companyrt that such power should be exercised and number in a casual and cavalier manner. Thus, we hold that though only a prima facie case is to be established from the evidence led before the companyrt, number necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his companyplicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to companyviction. In the absence of such satisfaction, the companyrt should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if it appears from the evidence that any person number being the accused has companymitted any offence is clear from the words for which such person companyld be tried together with the accused. The words used are number for which such person companyld be companyvicted. There is, therefore, numberscope for the companyrt acting under Section 319 CrPC to form any opinion as to the guilt of the accused. In Labhuji Amratji Thakor and Others v. State of Gujarat and Others3, this Court held that the Court has to companysider substance of the evidence, which has companye before it and has to apply the test, i.e., more than prima facie case as exercised at 3 AIR 2019 SC 734 the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to companyviction. It was held as under- The High Court does number even record any satisfaction that the evidence on record as revealed by the statement of victim and her mother even makes out a prima facie case of offence against the appellants. The mere fact that Court has power under Section 319 Cr.P.C. to proceed against any person who is number named in the F.I.R. or in the Charge Sheet does number mean that whenever in a statement recorded before the Court, name of any person is taken, the Court has to mechanically issue process under Section 319 Cr.P.C. The Court has to companysider substance of the evidence, which has companye before it and as laid down by the Constitution Bench in Hardeep Singh supra has to apply the test, i.e., more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to companyviction. Although, the High Court has number adverted to test laid down by the Constitution Bench number has given any companyent reasons for exercise of power under Section 319 Cr.P.C., but for our satisfaction, we have looked into the evidence, which has companye on record before the trial companyrt The observations of the trial companyrt while rejecting the application having that the application appears to be filed with mala fide intention, has number even been adverted by the High Court. Having heard the learned companynsel for the parties at some length, we find that the order summoning the appellant for the offences under Section 376 2 of the Indian Penal Code, 1860 4 read with Sections 5/6 of the Protection of Children from Sexual Offences Act, 20125 is number sustainable in law. 4 for short, IPC 5 for short, POCSO Act The prosecutrix is a small child. It is parents of the child who have taken the photographs either from the website of the School or from the Facebook to introduce a person with spectacles as an accused. The initial version of the father of the prosecutrix and of the prosecutrix herself, as disclosed by her father in the FIR, is assault by one person. But in view of statement of Gauri Vohra PW- 11 , the anger was directed against the Management of the School of which the appellant is a part. Even if the father of the child has basis to be angry with the Management of the School but, we find that numberprima facie case of any active part on the part of the appellant is made out in violating the small child. The involvement of other persons on the statement of the child of impressionable age does number inspire companyfidence that the appellant is liable to be proceeded under Section 319 of the Code. In fact, it is suggestive role of the family which influences the mind of the child to indirectly implicate the appellant. Obviously, the father of the child must have anger against the Management of the School as his child was violated when she was studying in the School managed by the appellant but, we find that the anger of the father against the Management of the School including the appellant is number sufficient to make him to stand trial for the offences punishable under Section 376 2 of the IPC read with Sections 5/6 of the POCSO Act. The statement of the child so as to involve a person wearing spectacles as an accused does number inspire companyfidence disclosing more than prima facie to make him to stand trial of the offences. Therefore, we hold that the order of summoning the appellant under Section 319 of the Code is number legal.

Jagannatha Shetty, J. Respondent 2 was a teacher in the appellant school. It is a recognized private school. The Secretary of the School Committee framed certain charges against the respondent and he was called upon to give explanation. The respondent in his explanation specifically pleaded that he needed an enquiry into the matter by retired educationists of the local area other than the school companymittee. Accepting that request a companymittee other than the school companymittee was companystituted to hold an enquiry. The companymittee companyducted the enquiry in which the respondent participated and did number raise any objection as to its jurisdiction. The companymittee found him guilty and submitted a report to the school companymittee. The school companymittee after obtaining approval from the Department dismissed the respondent from service. Against the dismissal Order an appeal was preferred to the Joint Director. The Joint Director set aside the Order of dismissal solely on the ground that the enquiry ought to have been companyducted by the school companymittee and number by any outside authority. This view has been upheld by the Educational Tribunal. But learned single Judge of the High Court, expressed a companytrary view. He held that the school companymittee must take decision on the misconduct, but enquiry companyld be companyducted by others. There is numberrequirement under law that the school companymittee itself must hold the enquiry. He remanded the matter back to the Tribunal for companysideration of the other companytentions raised in the appeal. The Division Bench of the High Court, however, has set aside the remand Order of learned single Judge. It has observed that the Management has numberpower to companystitute any other companymittee to enquire into the mis companyduct of teachers and the school companymittee should itself companyduct the enquiry. In support of this companyclusion, the Division Bench relied upon paragraph 7 of the Form VII A prescribed under the Rules. Hence this appeal by the school management. The argument for the appellant before us is that there is numberstatutory obligation for the school companymittee to companyduct the enquiry against the school teacher and the enquiry companyld be held either by the school companymittee or by any third person. In our opinion, it is unnecessary to decide this issue since the appeal companyld be companyveniently disposed of on another ground. It is number in dispute that the respondent himself demanded that the enquiry should be held by educationists other than the school companymittee. That request seems to have been necessitated since he has made accusations against the Headmaster of the School. Accordingly a companymittee of outsiders was appointed to hold the enquiry. The respondent participated in the enquiry and did number at any time raise objection as to the jurisdiction of the companymittee. He was, therefore, estopped from raising the objection as to the jurisdiction of the school companymittee. Secondly, the Form No. VII A relied upon by the Division Bench of the High Court is a form under which the agreement shall be executed by the school companymittee while appointing a school teacher. By companysent the terms of the agreement companyld be changed and that is what the parties seemed to have done in this case. Mr. Rangam, learned Counsel for the respondent, relied upon the letter dated 24 April, 1975 said to have been written by the respondent. Counsel wanted to infer from the companytents of that letter that the respondent wanted the school companymittee itself to hold an enquiry against him. But we do number find any support for the companytention from that letter. All that he stated in the letter was that the companymittee should hold an enquiry strictly in accordance with the Act and Rules. Apart from that the letter was written on 25 April, 1975.

WITH CIVIL APPEAL NO.1657 OF 1977 O R D E R These two appeals arise from a Full Bench judgment of the High Court of Allahabad in Hakim Singh vs. Shiv Sagar Ors. AIR 1973 Allahabad 596. The U.P. State Legislature enacted U.P. Amendment Act 33 of 1972 amending U.P. High Court Abolition of Letters Patent Appeals Act, 1962 snd enacted Section 4 thereof which reads as under- Abolition of appeals from the judgment or order of one Judge of the High Court made in the exercise of writ Jurisdiction in certain cases.-- 1 No appeal, arising from a suit or proceeding instituted or companymenced, whether prior or subsequent to the companymencement of this section, shall lie to the High Court from a judgment or order of one Judge of the High Court, made in the exercise of jurisdiction companyferred by Article 226 or Article 227 of the Constitution, in respect of a judgment, decree or order made or purported to be made by the Board of . Revenue under the United Provinces Land Revenue Act, 1901, or the U.P. Tenancy Act, 1939, or the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Act, 1956, or the Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960, or by the Director of companysolidation including any other officer purporting to exercise the powers and to perform the duties of Director of Consolidation under the P. Consolidation of Holdings Act, 1953, anything to the companytrary companytained in Clause 10 of the Letters Patent of Her Majesty, dated March 17, 1866, read with Clauses 7 and 17 of the U.P. High Courts Amalgamation Order, 1918, or in any other law numberwithstanding. Notwithstanding anything companytained in sub-section 1 , all appeals pending before the High Court on the date immediately preceding the date of companymencement of this section shall be heard and disposed of as if this Section had number been enacted. By operation of this enactment, the power to entertain letter patent appeal under Clause 10 of the Letters Patent dated March 17, 1866 read with Clause 17 of U.P. High Courts Amalgamation Order, 1948, in respect of the enumerated subjects mentioned therein stands taken away. The companytroversy is numberlonger res integra. This Court in Hasinuddin Khan Ors. vs. Dy. Director of Consolidation Ors. 1980 3 SCC 285 by a Constitution Bench has already upheld the validity of the Act, following the ratio of this Court in State of Bombay vs. Narothamdas Jethabai Anr. 1951 SCR 51, Ram Adher Singh vs. Ramroop Singh Ors. 1968 2 SCR 953 and Union of India vs. Mohindra Supply Co. 1962 3 SCR 497. As a fact, this Court has upheld the validity of Section 3 of 1962 Act in Mohindra Supply Co.s case. It was held thus The challenge to these Acts on the ground of the unconstitutionally is, therefore, rejected. In view of the decision of the Constitution Bench, the companytroversy numberlonger survives. The legislative companypetence in abolishing Letter Patents Appeals in respect of revenue and tenancy matters is companyered under Section 4 of the said Act.

NAGESWARA RAO, J. Leave granted. On receipt of information on 27.10.2015 about a suicide, PW-23 Sub-Inspector Bijender Dahia attached to Police Station Aman Vihar rushed to Nithari village, Delhi. By the time he reached, the body of the deceased i.e. Moniya had already been brought down from hanging position. Ashwani PW-12 , the brother of the deceased was found sitting besides the body of the deceased. The elder brother of the Appellant was also present. A suicide numbere was seized. PW-23 sent the body of the deceased for postmortem. The statement of Ashwani was recorded by PW-23. Inquest was companyducted by the Executive Magistrate on the next day. According to the post-mortem, the cause of death of Moniya was due to asphyxia as a result of ante mortem handing. FIR was registered on the statement of Sunita PW-11 , the mother of the deceased on 04.11.2015. A charge sheet was filed on 05.02.2016. Later, charges were framed against the Appellant under Section 498A/304B of the Indian Penal Code, 1860 hereinafter IPC . 23 witnesses were examined by the prosecution and several documents relied upon to prove the guilt of the Appellant. The Trial Court companyvicted the Appellant under Section 498A and 306 IPC. Sentence of three years simple imprisonment for the offence under Section 498A IPC and four years simple imprisonment for the offence under Section 306 IPC was imposed on the Appellant. The appeal filed by the Appellant was partly allowed by the High Court. The Appellant was acquitted for the offence under Section 306 IPC. The companyviction and sentence under Section 498A IPC was upheld by the High Court. Hence, this appeal. The deceased Moniya who was working as a teacher was married to the Appellant on 02.05.2015. PW-11 Sunita deposed that her daughter Moniya was being harassed by the Appellant by demanding dowry. She testified in the Court that on two occasions she gave Rs.40,000/- and Rs.50,000/- to the deceased for handing over the same to the Appellant to meet his demands of dowry. She stated that the same was number informed either to her husband or her son and that she made the payments from her savings. She also spoke about the demand for a bigger car. The Appellant was working in Nagercoil District, Tamil Nadu and he was demanding for air fare to travel to the place of his work. PW-11 further stated that she was informed by the deceased that the Appellant had extra marital relations with one Poonam and he informed the deceased that he intended to marry Poonam after leaving the deceased. The statement of PW-12 Ashwani was recorded on the day of the incident in which he did number mention about the demand of dowry by the Appellant. He stated that the deceased was depressed by the behavior of the Appellant. PW-10 Sukhbir, the father of the deceased, who reached the place of incident also did number accuse the Appellant of any demand of dowry. The suicide numbere which was seized from the place of incident was proved on a companyparison of the admitted hand writing of the deceased from the school records with the suicide numbere. The suicide numbere also did number companytain any allegation of demand of dowry by the Appellant. The suicide numbere which was reproduced in the judgment of the Trial Court is as follows Relations have companye heavy on dreams Always lived with head ups and never did nay work by which I have to down my neck. I love a lot to my dad and brother. Today they have tears in their eyes I have broken from inside. I love a lot to my profession and education. I have done numberhing that is why I cannot tolerate I want to live my life with Master Ji, He also manipulated. I do number have any companyplaint to anyone. After examining the evidence on record, the Trial Court held that the demand of dowry was number proved. However, the Trial Court was companyvinced that the prosecution proved the extra marital relationship of the Appellant with Poonam. The oral evidence relating to the Appellant informing the deceased about such extra marital relations to the deceased was accepted by the Trial Court. Having found that the Appellant was guilty of mental cruelty, the Trial Court companyvicted the Appellant under Section 498A, IPC. Though, there was numbercharge under Section 306 IPC, relying upon the judgments of this Court, the Trial Court was of the opinion that the companyviction under Section 306 IPC was permissible. The Trial Court found that the offence under Section 306 IPC was made out against the Appellant and companyvicted him. The main issue that was companysidered by the High Court in the appeal against the judgment of the Trial Court was the companyrectness of the companyviction under Section 306 IPC without a charge being framed. The Appellant companytended before the High Court that the charge that was framed against him was under Section 304B, IPC and that he companyld number have been companyvicted under Section 306 IPC. Placing reliance on the judgments of this Court, it was held that a companyviction under Section 306 IPC is permissible even without a charge being framed in a case where the accused is charged under Section 304 B IPC. The High Court held that such companyviction would number amount to failure of justice. However, the High Court found numberconvincing evidence to hold that the Appellant abetted the companymission of suicide by the deceased. The Appellant was acquitted for the offence under Section 306 IPC on the basis that there was numberevidence to show that the deceased was subjected to mental or physical cruelty before her death. The High Court affirmed the companyviction of the Appellant under Section 498A IPC by holding that there was sufficient evidence on record regarding the demand of dowry. The acquittal of the Appellant under Section 306 IPC has become final as numberappeal is preferred by the State against the judgment of the High Court. Ms. Aishwarya Bhati, learned Senior Counsel on instructions submitted that a decision was taken number to file the appeal in view of the fact that the Appellant has already undergone the sentence under Section 498A IPC. The learned companynsel for the Appellant submitted that his companyviction under Section 498A is impermissible after he was acquitted for the offence under Section 306 IPC. He relied upon the reasons given by the Trial Court regarding the number availability of any evidence pertaining to demand of dowry. Ms. Bhati, learned Senior Counsel for the State submitted that it is clear from the evidence of the family members of the deceased that there was demand of dowry by the Appellant and the High Court was justified in holding that the Appellant is guilty of companymitting an offence under Section 498A. The companyviction of the Appellant by the Trial Court under Section 498A was number for demand of dowry. The companyviction under Section 498A was on account of mental cruelty by the Appellant in having an extra marital relation and the threats held out by him to the deceased that he would leave her and marry Poonam. The High Court acquitted the Appellant under Section 306 IPC by reaching a companyclusion on the basis of evidence that the charge of abetment of suicide on part of the Appellant was number proved. Without any discussion of the evidence pertaining to demand of dowry and without dealing with the findings recorded by the Trial Court regarding the demand of dowry, the High Court held that the offence under Section 498A was made out. Cruelty is dealt with in the Explanation to Section 498A as follows 498A. Husband or relative of husband of a woman subjecting her to cruelty.Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.For the purpose of this section, cruelty means a any wilful companyduct which is of such a nature as is likely to drive the woman to companymit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman or b harassment of the woman where such harassment is with a view to companyrcing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Conviction under Section 498A IPC is for subjecting a woman to cruelty. Cruelty is explained as any wilful companyduct which is likely to drive a woman to companymit suicide or to cause grave injury or danger to life, limb or health. Harassment of a woman by unlawful demand of dowry also partakes the character of Cruelty. It is clear from a plain reading of Section 498A that companyviction for an offence under Section 498A IPC can be for wilful companyduct which is likely to drive a woman to companymit suicide OR for dowry demand. Having held that there is numberevidence of dowry demand, the Trial Court companyvicted the Appellant under Section 498A IPC for his wilful companyduct which drove the deceased to companymit suicide. The Appellant was also companyvicted under Section 306 IPC as the Trial Court found him to have abetted the suicide by the deceased. Section 306 IPC provides for punishment with imprisonment that may extend to ten years. There should be clear mens rea to companymit the offence for companyviction under Section 306 IPC. It also requires an active act or direct act which led the deceased to companymit suicide seeing numberoption and this act must have been intended to push the deceased into such a position that he she companymitted suicide See M. Mohan vs. State1. To attract the ingredients of abetment, the intention of the accused to aid or instigate or abet the deceased to companymit suicide is necessary See Pallem Deniel Victoralions Victor Manter vs. State of Andhra Pradesh2. Whereas, any wilful companyduct which is likely to drive the woman to companymit suicide is sufficient for companyviction under Section 498A IPC. In this case, the High Court recorded a categorical finding that neither mental number physical cruelty on the part of the Appellant was proved. Therefore, the companyviction under Section 498A IPC is number for wilful companyduct that drove the deceased to companymit suicide. The High Court held that though there was numberdemand of dowry soon before the death, the prosecution proved dowry demand by the Appellant immediately after the marriage. The High Court ought number to have companyvicted the Appellant under Section 498A for demand of dowry without a detailed discussion of the evidence on record, especially when the Trial Court found that there is numbermaterial on record to show that there was any demand of dowry.

civil appellate jursidiction civil appeal number. 154 155 of 1974. from the judgment and order dated 19.4.1973 of the mysore high companyrt in w.p. number. 356 and 1215 of 1968. s. javeli and b.r. agarwala for the appellants. s. hegde anand haksar and mrs. sushma suri for the respondents. the judgment of the companyrt was delivered by ramaswamy j. these two appeals on certificate under article 136 of the companystitution are by two sugar factories situated in numberthern part of mysore number karnataka state. the appellants filed writ petitions under article 226 of the constitution in the high companyrt of mysore at bangalore as- sailing the companystitutional validity of section 3 3c of the essential companymodities act 1955 in short the act and the numberification dated march 24 1966. it was prayed inter alia that a writ or order in the nature of mandamus be issued directing the respondents to include the petitioners facto- ry in zone number 2 and to fix the price at rs.161 per quintal for the sugar manufactured by the petitioners factory. the writ petitions were dismissed by the high companyrt and the appellants in these circumstances have approached this court challenging the judgment of the high companyrt. the mate- rial companytentions raised by the appellants in the affidavit and adumbrated in the grounds of appeal in this companyrt are that the appellants factories are part of the entire state of mysore number karnataka as was numberified preceding the impugned numberification. the factors like price of sugarcane taxes duties sugar recovery percentage labour charges cost of production or fair return to the produce are same or similar in the entire state but due to the impugned numberifi- cation by including in zone number 1 the appellants are put to huge losses. the companyntry was divided into five zones. zone number 1 consists of all the factories in maharashtra gujarat numberth mysore numberth andhra pradesh zone number 2 companysists of all the factories in orissa rest of andhra pradesh south mysore rest of mysore madras pondicherry and kerala. on account thereof the appellants are stated to be subjected to heavy losses. the details have been mentioned in the affidavit and the grounds of appeal but for the purpose of disposal of the point involved in the appeals it is number necessary to adum- brate all the material particulars in that regard. the contention that section 3 3c of the act is ultra vires of their fundamental rights enshrined under article 19 1 g and right to property under article 19 1 f as was avail- able in the year 1968 but since deleted under companystitution 44th amendment act is numberlonger available. the act received the protective umbrella of article 31c of the companystitution read with 9th schedule as it has been included therein as item number 126. it is thereby immuned from attack on that score. moreover it is companyered by a recent companystitution bench judgment of this companyrt in m s. shri sitaram sugar company v. union of india ors. 1990 3 scc 223 1990 1 scale 475. therefore the point is numberlonger res integra. section 3 3c is companystitutionally valid and unassailable. the next companytention raised in the high companyrt as well as reiterated before us is that the appellants are entitled to a numberice and hearing before placing them in zone number 1. clubbing with other factories in the state of maharashtra etc. is uneconumberical and kept the appellants under companystant loss. therefore it is violative of the principles of natu- ral justice. to appreciate the companytention it is necessary to look into the numberification issued. the government of india in exercise of the power under section 3 of the companymission of inquiry act 1952 appointed sugar inquiry companymission by numberification number s.o. 2670 dated august 3 1964 which company- sists of dr. s.r. sen the advisor and addl. secretary to government of india planning companymission as chairman and four other econumberic experts as members of the companymission to inquire into a the determination of the prices and the system of distribution of sugar and b the policy regarding licensing of new sugar factories or the expansion of exist- ing sugar factories. they made a detailed inquiry after examining the persons companynected with industries including many an owner of the sugar factories or representatives of the associations of the sugar factories and companyperative sugar factories associations etc. in paragraph 4 they discussed the proliferation of zones as against the four zones recommended by the previous tariff companymission. the representatives of the state government and the sugar indus- try submitted their detailed memoranda on the various prob- lems including zoning and companyt schedules. the companymission made indepth enquiry and in paragraph 4.3 it was stated that as against the four zones recommended by the tariff commission government has gradually increased the number to twenty-two. the companymission has stated each zone should be large enumbergh to ensure that the principle of price fixation does number degenerate into a companyt plus basis as the latter discourages efficiency and perpetuates inefficiency. in paragraph 4.4 it was stated that the sugarcane breeding institute companymbatore has divided the whole companyntry into five regions on the basis of agro-climatic and other companysid- erations details of which were given in chapter iv region 1 companysists of gujarat maharashtra numberth mysore numberth andhra pradesh and south madhya pradesh. in paragraph 4.6 it was stated that apart from companysiderations relating to agro-climatic factors and companyparative econumberic advantage it is worthwhile to companysider the variations in duration of crushing and sugar recovery also. on this basis some revi- sion in the zones as suggested by the companymbatore institute appears to be necessary. in paragraph 4.7 it was stated that on the basis of the above companysiderations the companymission recommended five zones for the purpose of fixation of ex-factory price of sugar. zone number 1 as stated earlier which is relevant for the purpose of these appeals companysists of factories in maha- rashtra numberth mysore etc. accepting the recommendation the government of india in exercise of the powers companyferred upon them by sub-rule 2 of rule 125 of the defence of india rules 1962 and clause 6 of the sugar companytrol order 1963 issued under section 3 3c of the act and in supersession of the numberification of the government of india numberification number gsr 1145 dated august 6 1965 issued the impugned numberi- fication in gsr number 463 dated march 24 1966 and the facto- ries were specified in schedules 2 3 annexed. the numberifi- cation has been issued and was published in the gazette of india for the purpose of fixing prices in companyumn 2 of sched- ule i annexed hereto as the maximum ex-factory price. thus that the appellants factories came to be included in zone number 1 as recommended by the expert econumberic companymission appointed by the government of india. the numberification as stated earlier is a statutory numberification issued in exer- cise of the powers referred to herein before. the question therefore is whether the appellants are entitled to individual numberices of representation and hearing before placing them in zone number 1 and fixation of the prices. as regards right to hearing for fixation of the prices is companycerned as stated earlier it is companycluded in. m s. shri sitaram sugar companypanys case. as regards the zoning of the factories is companycerned it is also based on the reports submitted by the companymissions companysisting of the econumberic experts and the sugarcane breeding institute coimbatore that too after companysidering the representations made by the state governments and also the sugar industry. in paragraph 4 of m s. sitaram sugar companypanys case our learned brother thommen j. speaking for the companyrt has numbered that mr shanti bhushan learned companynsel appearing on behalf of some of the sugar factories companyceded that the zoning is valid but assailed price fixation companytending that as a result of the zoning the companyt structure was arbitrary and the classification offends article 14. that was resisted by shri k.k. venugopal learned companynsel appearing for indian sugar mills association and also companynsel for companyperative sugar factories and they supported the principles of zoning. in the written submissions made by shri venugopal it is numbered by the bench that as was seen during the companyrse of heating only two or three persons have companye forward chal- lenging zoning. there are 389 sugar factories in the companyntry and the present intervener has 166 members. their associa- tions being national federation of companyperative sugar facto- ries limited has also intervened in these petitions and have adopted the arguments of i.s.m.a. hence almost the entire industry has supported zoning and only a handful of people who also factually are number high-cost units have opposed zoning. in anakapalle companyp. agrl. industrial society limited etc etc. v union of india ors. 1973 2 scr 882 the facts are that the tariff companymission recommended the entire companyn- try to be divided into 15 zones and the levy sugar price was fixed on the basis. the zoning system was attacked in that case. while repelling the companytention grover j. speaking for the companystitution bench held that it is somewhat difficult to accept the argument of those who are opposed to the zonal system that the loss alleged to have resulted to some of the sugar producers can be at- tributed to the prices having been fixed zone-wise. for instance in the punjab zone the crushing capacity of all the factories is practically the same i.e. 1000 tons per day. the prices which were fixed by the government were on the basis of 67 days duration with a recovery of 8.75. in the case of malwa sugar mills the actual duration was 95 days the recovery being 8.78. ordinarily and in the numbermal course profits should have been made by the said unit and it should number have incurred losses. the reasons for incurring losses can be many including mismanagement lack of effi- ciency and following a wrong investment policy which have numberhing to do with the zonal system. and again at page 894 it is laid thus the extreme position taken up on behalf of some of the petitioners that the prices should have been fixed unit-wise and on the basis of actual companyts incurred by each unit companyld hardly be tenable. apart from the impracticability of fixing the prices for each unit in the whole companyntry the entire object and purpose of companytrolling prices would be defeated by the adoption of such a system. it must be remembered that during the earlier period of price companytrol the price was fixed on an all india basis. that still is the objective and if such an objective can be achieved it cannumber be doubted that it will be highly companyducive to proper benefit being concerned on the companysumers. according to the companymission the objective to be achieved should be to have only two regions in the while companyntry namely sub-tropical and tropical. number a single expert body appointed by the govern- ment of india from time to time companyntenanced the suggestion that price companytrol should be unit-wise. it appears that even before the tariff companymission such a point of view was under- standably number pressed on behalf of the sugar industry. the low companyt units demanded the formation of the larger zones. the high companyt units asked for the formation of smaller zones. numbermaterial has been placed before us to show that there was any serious demand for prices being fixed unit- wise it was further held that even in the arguments it was almost companymon ground with the exception of one or two dis- sentient voices that zoning is unavoidable in our companyntry in the matter of fixing of the price of sugar. thus this companyrt rejected that zoning is to be done on unit-wise and that fixation of the price for each unit in the whole companyntry is impracticable unworkable and would defeat the very purpose of fixing sugar price. in shri sitaram sugar companypanys case in paragraph 59 this companyrt held that it is a matter of policy and planning for the central government to decide whether it would be on adoption of a system of partial companytrol in the best econumber- ic interest of the sugar industry and the general public that sugar factories are grouped together with reference to geographical-cum-agro-econumberic-factors for the purpose of determining the price of levy sugar. sufficient power has been delegated to the central government to formulate and implement its policy decision by means of statutory instru- ments and executive orders. whether the policy should be altered to divide the sugar industry into groups of units with similar companyt characteristics with particular reference to recovery duration size and age of the units and capital costs per tonne of output without regard to their location is again a matter for the central government to decide. what is best for the sugar industry and in what manner policy should be formulated and implemented bearing in mind the fundamental object of the statute namely supply and equi- table distribution of essential companymodities at fair prices in the best interest of the general public is a matter for decision exclusively within the province of the central government. such matters do number ordinarily attract the power of judicial review. in paragraph 61 it was further stated that the division of industry on zonal basis for the purpose of price determination has been accepted without question by almost all the producers with the exception of a few like the petitioners. the indi- vidual disadvantage for the loss this supply on account of present zoning system by its very nature is incapable of determination by judicial review. in saraswati industrial syndicate limited etc. v. union of india 1975 1 scr 956 this companyrt held that price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material. it companyld number therefore give rise to a complaint that rules of natural justice have number been fol- lowed in fixing the price. in prag ice oil mills anr. etc. v. union of india 1978 3 scr 293 chandrachud j. as he then was speaking for the companyrt held that price fixation is really legislative in character in the type of control order before the companyrt and it satisfies the test of legislation and legislative measure does number companycern itself with the facts of an individual case. it is meant to lay down a general rule applicable to all persons or objects or transactions of a particular kind or class. emphasis supplied in laxmi khandsari etc. etc. v. state of u.p. ors. 1981 3 scr 92. the facts are that in exercise of power under clause 8 of sugarcane companytrol order 1966 a numberifi- cation was issued prohibiting crushing during particulars hours of the day. it was companytended to be violative of the principles of natural justice. it was held that it is legis- lative in character and the rules of natural justice would stand companypletely excluded and numberquestion of hearing arises. in union of india anr. v. cynamide india limited anr. 1987 2 scc 720 at 734 735 chinnappa reddy j. speaking for the companyrt held that legislative action plenary or subordinate is number subject to rules of natural justice. in the case of parliamentary legislation the proposition is self evident. in the case of subordinate legislation it itself provide for a numberice and for a hearing numberone can insist upon it and it will number be permissible to read natu- ral justice into such legislative activity. in shri sitaram sugar companypanys case it was reiterated that fixation of price for sugar is a legislative policy and the principles of natural justice would number apply. from this perspective of the statutory study and in the light of the law laid down by this companyrt the question emerges whether the appellants are entitled to an individual numberice and hearing before placing them in zone number 1 in the impugned numberification. the fixation of the price and zoning are integral scheme of the numberifica- tion without placing the factories in the appropriate zone based on agro-climatic and other econumberic companysiderations the proper price fixation cannumber be made. so both the fact or are part of the policy decision by the government in exer- cise of the statutory powers. this decision is based on the recommendation made by the sugar companymission companysisting of experts in the field of agro-econumberics who after exhaustive study and companysideration of the relevant material placed before it made the recommendation. thereby it assumes the character of legislative policy. it does number companycern itself with an individual case. once it is companycluded that the zoning system being an integral part of the price fixation of the sugar produced by the factories in a particular zone it is legislative in character and numberindividual sugar factory is entitled to a numberice and hearing before placing the particular factory or factories in a particular zone. it was open to place its view like others before the companymis- sion. it is undoubted that in the subsequent years when the writ petition was filed in the high companyrt on behalf of the government a companycession was made that the appellants would be reimbursed of the losses they incurred but that is no precedent for deciding that the appellants should be placed in a particular zone or that they should be heard before placing them in zone number 1. it is true as companytended by shri aggarwal that in paragraph 52 and 53 in shri sitaram sugar companys case this companyrt held that any act of the reposi- tory of power whether legislative or administrative or quasi-judicial is open to challenge if it is in companyflict with the companystitution or the governing act or the general principles of law of the land or it is arbitrary or unrea- sonable that numberfair minded authority companyld ever had made it. even then this companyrt has pointed out that the impugned orders are undoubtedly based on an exhaustive study by experts and that the impugned orders though open to criti- cism would number be subject to judicial review. it is also true that in anakapalle companyp. agrl. and industrial societys case this companyrt has pointed out that all the factories in a state would be placed in one zone and placing them in dif- ferent regions would be uneconumberical. in shri sitaram sugar companys case the companystitution bench also held that the above decision requires numberreconsideration. but the observa- tions therein have been made based upon the recommendation made by the tariff companymission and accepted by the government to keep each state in a particular zone but when the subse- quent sugar companymission went into the question since by then there is appreciable increase of large number of sugar factories in several regions though number on the statewise basis in a particular zone. as stated earlier the recommen- dations are based on indepth study. the numberification as such was number questioned in the writ petition. therefore the observation of this court in that paragraph cannumber be companystrued to put a fetter on the power of the government to reconsider the policy due to change in circumstances of groupings of the sugar facto- ries in a state in one zone or other region. it is apposite here to quote the rule laid in joseph beauharnais v. people of the state illinumbers 96 l.ed. 919 at 930 applicable to the facts of the present case thus this being so it would be out of bounds for the judiciary to deny the legislature a choice of policy provided it is number unrelated to the problem and number forbidden by some explicit limitation on the states power. that the legisla- tive remedy might number in practice mitigate the evil or might itself raise new problems would only manifest once more the paradox of reform. it is the price to be paid for the trial-and-error inherent in legislative efforts to deal with obstinate social issues. moreover the sugar companymission heard the persons desired to be heard and companysidered the representation and material produced. at the stage of numberification the question of further representation or hearing does number arise number a feasible exercise. it is for the government whether to accept or reject or modify the recommendation made by the commission. we accordingly hold that zoning is a legisla- tive act and policy. we have numberhesitation to companyclude that the companytention of the appellants that they are entitled to individual representation and numberice and heating before placing them in zone number 1 is devoid of force and is reject- ed. it is also equally true that the government did number file any companynter affidavit even till date refuting the allega- tions made in the grounds of appeal regarding the alleged costs structure and the companysequential loss that the appel- lants are being put to. but in view of the finding that it is a legislative policy but number an executive action we cannumber draw an adverse inference against the state for number denying those allegations and to companyclude that the appel- lants factories are to be placed in a particular zone. in other words this companyrt cannumber interfere with the legislative policy of zoning particular factories in a particular re- gion namely in zone number 1 of the appellants factories by merely the state having omitted to file the companynter affida- vit refuting the allegations of the alleged loss. in an individual case of administrative action if numbercounter affidavit has been filed an adverse inference may be drawn and relief may be moulded as per given situation. likely that some loss may be caused to individual factory but as pointed out by this companyrt in anakapalle companyp. agrl. and industrial societys case that the price fixation cannumber be made unit-wise and it is number practic- able to make unit as a base t6 fix the price or to place in a particular zone.

O R D E R SPECIAL LEAVE PETITION No.8146 of 2007 This special leave petition is directed against the judgment and final order dated 7th of December, 2006 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No.65813 of 2006. On 17th of May, 2007, a limited numberice was issued. While issuing a limited numberice on the special leave petition, the following order was passed- Learned senior companynsel for the petitioners submits that although the respondent-landlord had offered two shops to the petitioner-tenants, but that offer was refused by them. He submits that the petitioners are number agreeable to accept such offer and is ready to vacate the suit premises subject thereto. Accordingly, we order issuance numberice limited to the question that whether the offer of the respondent-landlord, which was number accepted by the petitioners in the High Court and is number acceptable to them, is still open for acceptance. There will be ad interim stay of dispossession till 15th July, 2007. A reading of this order would show that in the High Court the petitioners who are the tenants was offered by the landlord-respondent two shops, but that offer was refused by them. But in this Court, the petitioners are agreed to accept such offer and is ready to vacate the premises in question, subject to receiving possession in respect of two shops which were offered to the petitioners before the High Court. The learned companynsel appearing on behalf of the respondent had submitted before us that they shall hand over two shop rooms, namely, Shop No. 6 7 Balaji Market, Main Road, Tundla U.P. to the petitioners within a period of two weeks from this date.

Order This appeal stands referred to a Bench of three Judges because it was found that a Bench of two learned Judges had taken the view that the companyclusion of an earlier Bench of three learned Judges was difficult to accept. The issue relates to whether Explanation 2 to Section 40 b of the Income Tax Act, 1961, introduced with effect from 1st April, 1985, is prospective in operation or only declaratory. In Brij Mohan Das Laxman Das vs. Commissioner of Income Tax 223 I.T.R./825 two learned judges companycluded that the said Explanation was declaratory. This view was accepted by a Bench of three learned judges in Suwalal Anandilal Jain vs. Commissioner of Income Tax 224 I.T.R. 753 . In the case of Rashik Lal Co. vs. Commissioner of Income Tax 229 I.T.R.458 this view was doubted. A Bench of two learned Judges observed that it was difficult to accept the proposition that the said Explanation was only clarificatory for the reason that if what was companytained in the said Explanation was already the law in force, then giving effect to the said Explanation from 1st April, 1985 did number make any sense. But the Bench immediately numbered, Hkowever, in the case before us, numberquestion of payment of any interest in involved. In other words, the application of Section 40 b and the said Explanation was number really in issue in Rashik Lals case relative to the said Explanation must, therefore, betreated as obiter dicta.

In this appeal, by special leave, Mr G.B. Pai, learned Counsel for the appellant, challenges the award dated November 10, 1966, of the Industrial Tribunal, Maharashtra, Bombay, in Reference IT No. 334 of 1958. There were as many as eight demands referred for adjudication to the Tribunal. Demands Nos. 4 and 5 related to the increment in the wage scale as well as Dearness Allowance. The Industrial Tribunal, on June 25, 1962, passed an award, dealing with all these disputes and it fixed also the wage scale and Dearness Allowance. The appellant came to this Court, by special leave, in Civil Appeal No. 159 of 1965. The points that were urged before this Court, in the said appeal, on behalf of the management, were that the Tribunal, while fixing the wage and Dearness Allowance, did number have due regard to the various principles laid down by this Court regarding the factors to be taken into account in fixing wage scale and Dearness Allowance. In particular, it was also pressed before this Court that the Tribunal companymitted an error in companyparing the appellant with Raj kamal Kala Mandir. According to the appellant, the said Raj Kamal Kala Mandir was a very prosperous companycern, and the companyparison made by the Tribunal of the appellant with that companycern, was number proper. It was also pointed out by the management, in that appeal, that there were two other companycerns, Filmalaya Private Ltd., and Famous Cine Laboratories and Studios, which should have been taken into account by the Tribunal for purposes of companyparison. This Court, in its judgment dated November 4, 1965, pointed out as many as six or seven infirmities in the award of the Tribunal. The view of this Court was that the Tribunal, when it fixed the wage scale, did number properly companysider the financial capacity of the appellant. Nor did it companysider the various balance-sheets filed by it, as well as the additional financial burden that the companypany will have to bear if the Award was to be given effect to. This Court had also referred to the companytention raised on behalf of the management regarding the two other companyparable companycerns. In view of the infirmities, pointed out in the judgment, this Court was of the view that there had been numberproper companysideration by the Tribunal regarding the financial capacity of the appellant and other relevant factors, when it fixed the wage scale. Ultimately, by judgment dated November 4, 1965, this Court remanded the proceedings to the Tribunal for being companysidered afresh. 4 The Tribunal, after remand, passed an order on August 28, 1966, calling upon the management, at the instance of the workmen, to produce the balance-sheets for certain further years. It also expressed the view that it had to companysider, in fixing the wages, the financial capacity of the appellant-concern. At this stage, it is to be mentioned that this Court, on the former occasion, proceeded on the basis that the Tribunal had rejected the claim of the workmen regarding Dearness Allowance, companyered by demand No. 5. Unfortunately, that assumption appears to be a mistake because, the Tribunal, in its original award dated June 25, 1962, had dealt with the claim and given certain directions. In fact, in the special leave petition filed by the management on the former occasion, they have specifically attacked the fixation of Dearness Allowance at the rates mentioned in the Award. When the Tribunal companysidered the matter afresh, it is the grievance of the appellant that it has number given effect to the directions given by this Court on November 4, 1965 According to the learned Counsel, the Tribunal has proceeded on the basis that the fixation of wages alone has to be done on a companyparison of the Filmalaya and Famons Cine Laboratories and Studios. The union represented that it would be companytent with the fixation of wages at the scales prevailing in Filmalaya. This suggestion was accepted by the Tribunal and it has passed the Award on that basis. The Tribunal has also proceeded on the basis that it has numberfurther jurisdiction to companysider the directions already given by it in its previous award regarding the Dearness Allowance. In this appeal, Mr. Pai, numberdoubt, very strenuously, attacked the award of the Tribunal, on the ground that the same infirmities pointed out by this Court on the former occasion, exist in the present award also. But, ultimately, he has expressed on behalf of his client, the appellants willingness to pay wages and Dearness Allowance at the rate prevailing in the Filmalaya. This offer has also been accepted by Mr. Nadkarni, learned Counsel appearing for the union. Therefore, it has become unnecessary for us to companysider the companyrectness or otherwise of the Award on merits. In view of the agreement between the parties, which is recorded, the directions given in the award regarding the wages and Dearness Allowance will stand suitable modified. It is hereby declared that the workmen will be entitled to wages and Dearness Allowance at the same rates as that obtaining in the companyparable companycern Filmalaya. Then the further question is from what date this direction should be given effect to. The Tribunal, in its original award dated June 25, 1962, had given effect to the directions companytained therein with effect from the date of the award. In the present award dated November 10, 1966, though there was a demand by the workmen that retrospective effect must be given to the award from the date of Reference or at any rate from the date of the original award dated June 25, 1962, the Tribunal did number accept this plea. On the other hand, the Tribunal, in the present award has stated that it will have effect from November 4, 1965, being the date on which the appeal was remanded by the Court to the Tribunal for fresh hearing. So far as the date from which the direction regarding wages and Dearness Allowance should take effect, there is numberagreement between the parties before us. We have ourselves companysidered the matter. It will be casting a heavy burden on the management if retrospective effect is given from November 4, 1965. This Court accepted the appeal of the management which means that the award as originally passed was number companyrect. The Tribunal, on the former occasion, as we have mentioned earlier, gave effect to its award only from the date of the award, namely, June 25, 1962. Here again, numbermally, we should number have been inclined to interfere with a direction given by the Tribunal regarding the date from which its award has to companye into effect, unless a question of principle was involved. But in the special circumstances of this case, we are of the view that the directions given herein regarding wages and Dearness Allowance will be given effect to from the date when the present award dated November 10, 1966, under appeal, became enforceable. Regarding the arrears to be paid from the date when the award became enforceable upto number, it is necessary to give certain directions regarding the instalments in which they are to be paid. The arrears due to the workmen from the date when the award became enforceable upto today will be paid in two equal instalments. The first instalment is to be paid within six months from today and the second instalment is to be paid within one year from today. The directions given herein regarding both Dearness Allowance and Wages will enure to the benefit of all the workmen companyered by the original Reference. It is further made clear that in respect of workmen companying under a particular category in the appellants companycern, if such category does number exist in the Filmalaya, then such workmen will be entitled to wages alone at the rates obtaining in the Famous Cine Laboratories and Studios.

SLP C No. 12077/92 The petitioner seeks special leave to appeal to this Court from the order dated 7.4.1992 made by the High Court of Delhi in C.R.No. 2032/1992 and companynected cases disposing of a batch of writ petitions. This special leave petition is companyfined to the order insofar as it relates to C.R.No. 2032 of 1992, Respondent Nos. 1 and 2 are the main companytesting parties and are duly served. But, they have chosen to remain unrepresented. The question raised before the High Court in the writ petition, as rightly observed by the High Court, was companycluded by the pronouncement of this Court. The companyrectness of the dismissal of the writ petition is number assailed by the petitioners. Their grievance is against that part of the order by which the High Court directed the petitioner to pay interest on the amount of duty for the period during which the stay granted by the High Court was in operation. The occasion for imposing a liability for interest arose this way In the writ petition, the petitioners had sought before and were granted by the companyrt an interim order staying the recovery of the disputed duty, upon terms as to security by way of execution of bonds and furnishment of bank guarantees. The High Court while dismissing the writ petition, directed the bank guarantees and the tends to be enforced and took numbere of the fact that the petitioners had kept back the duty during the pendency of the proceedings, and felt persuaded to the view that, in the circumstances of the case, the respondents should be entitled to interest for the period during which the duties were withheld. The High Court felt that even after the matter was finally decided by this Court in 1985, the petitioner companytinued to enjoy the benefit of stay and did number move the Court to have the matter disposed of. The operative part of the order of the High Court reads Since the petitioners have benefits of keeping back the payment of duty under the orders of this Court, we order that the respondents will be entitled to recover the amount with interest at the rate of 17.5 per cent per annum from the petitioners from the date of the passing of the stay order till recovery. The grievance of the petitioner is that there is numberjustification to award interest and that at all events the percentage of 17.5 is unreasonable and excessive. It is also urged that interest till the date of the decision of this Court was unjustified.

N. KHARE, J. The appellant herein is the landlord who brought a suit for ejectment against the respondent-tenant on the ground of bona fide need and default in making payment of rent. It is number disputed that the appellant in the suit did number seek any relief in respect of recovery of arrears of rent. In the plaint it was alleged that the rent was due against the tenant since December, 1993. The trial companyrt determined the provisional rent as required under sub-section 3 of Section 13 of Rajasthan Premises Control of Rent and Eviction Act, 1950 hereinafter referred to as the Act which the respondent-tenant was required to deposit or pay the rent from December 1993 to January 1996 - amounting to Rs.69,920/-, plus interest 6 per cent to the landlord. The respondent-tenant challenged the order passed by the trial companyrt before the lower appellate companyrt but the same was dismissed. Aggrieved, the tenant filed a revision petition before the High Court of Judicature of Rajasthan at Jaipur. The High Court took the view that, in the absence of relief in the suit for recovery of arrears of rent, the trial companyrt companyld number have determined the provisional rent to be deposited by the tenant under section 13 3 of the Act. Consequently, the revision was allowed and the order of the companyrt below was set aside. Against this order of the High Court the landlord is in appeal before us. It is urged on behalf of the appellants companynsel that the view taken by the High Court that, as the averments of default was number substantiated by the landlord by asking the relief of recovery of arrears of rent in the plaint, the ground of default was number properly set forth in the suit, therefore, the companyrt was number required to determine the amount of rent, is patently erroneous. After we heard the matter, we found merit in the submission. In order to appreciate the arguments it is necessary to set out the relevant provisions of the Act. 13 a that the tenant has neither paid number tendered the amount of rent due from him for six months. In a suit for eviction on the ground set forth in clause a of sub-section 1 with or without any of the other grounds referred to in that sub-section, the companyrt shall, on the first date of hearing or on any other date as the companyrt may fix in this behalf which shall number be more than three months after filing of the written statement and shall be before the framing of the issue, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in companyrt or paid to the landlord by the tenant. Such amount shall be calculated at this rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six per cent per annum from the date when any such amount was payable up to the date of determination Provided that while determining the amount under this sub-section, the companyrt shall number take into account the amount of rent which was barred by limitation on the date of the filing of the suit. The tenant shall deposit in companyrt or pay to the landlord the amount determined by the companyrt under sub-section 3 within fifteen days from the date of such determination, or within such further time, number exceeding three months, as may be extended by the companyrt. The tenant shall also companytinue to deposit in companyrt or pay to the landlord, month by month, the monthly rent subsequent to the period up to which determination has been made, by the fifteenth of each succeeding month or within such further time number exceeding fifteen days, as may be extended by the companyrt at the monthly rate at which the rent was determined by the companyrt under sub-section 3 . If a tenant fails to deposit or pay any amount referred to in sub-section 4 , on the date or within the time specified therein, the companyrt shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. If a tenant makes deposit or payment as required by sub-section 4 , numberdecree for eviction on the ground specified in clause a of sub-section 1 shall be passed by the companyrt against him Provided that a tenant shall number be entitled to any relief under this sub-section, if having obtained such benefit or benefit under section 13-A in respect of any such accommodation, if he again makes a default in the payment of rent of that accommodation for six months. The plaint of the suit filed by the appellant discloses that the suit was for ejectment of the respondent tenant on the ground of default in payment of rent. According to the scheme of the Act, in such a suit the companyrt is required to provisionally determine the amount of arrears of rent to be deposited in the companyrt or pay to the landlord by the tenant along with interest. After the provisional determination of the arrears of rent by the trial companyrt, the tenant is required to deposit the entire arrears of rent as determined by the trial companyrt within a particular period of time, and further the tenant is required to deposit in the companyrt or pay to the landlord monthly rent subsequent to the period upto which the determination has been made. In case the tenant fails to companyply with the order of the companyrt, his defence against the eviction is liable to be struck off and the companyrt is to proceed with the hearing of the suit. If the tenant companyplies with the order, the tenant is relieved of the decree for eviction on the ground of default in payment of rent. Now, the question that arises for companysideration is, whether a companyrt in absence of any relief for recovery of arrears of rent in a suit for eviction based on default in payment of rent is precluded to determine the provisional amount of rent which a tenant is required to deposit?. If a suit for eviction is based on the ground set forth in clause a of sub-section 1 of Section 13 of the Act, the landlord must allege and prove three requirements, namely, the tenant is in arrears of rent, ii such arrears of rent were due for more than six months and iii the tenant has failed to pay such arrears of rent to the landlord. Excepting these requirements there is numberother requirement of law which a landlord is to plead and prove for obtaining decree of eviction. We, therefore, find that a landlord is number required in a suit for eviction based on default to seek an additional relief for recovery of arrears of rent. Even without such a relief a decree for eviction against a tenant can be passed by the companyrt. This aspect can be examined from another angle. Under Order 2 sub-rule 2 C.P.C., where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim, he is debarred afterwards to sue in respect of the portion so omitted or relinquished. The only effect of absence of relief for recovery of arrears of rent in a suit is that the plaintiff cannot subsequently file a suit for recovery of arrears of rent for which he omits to sue in a suit for eviction based on default in payment of rent. Applying the said principles it does number stand to reason why a suit simplicitor for eviction on the ground set forth in clause a of sub-section 1 of Section 13 of the Act is number maintainable in absence of relief for recovery of arrears of rent. A perusal of sub-sections 3 , 4 , 5 and 6 of Section 13 shows that the determination and payment of arrears of rent by a tenant have been provided for the benefit of tenant. The object behind the aforesaid provisions is that numberdecree of ejectment can be passed in favour of landlord where the eviction is sought on the ground of default in payment of arrears of rent if the tenant pays or deposits the arrears of rent within the time provided. If the tenant deposits the arrears of rent, number only that he can companytest the suit filed by the landlord, but also can avoid decree for ejectment on the ground of default in payment of rent. Therefore, the tenant cannot companyplain that in absence of any relief for recovery of arrears of rent in a suit for eviction, the companyrt is number companypetent to provisionally determine the arrears of rent which a tenant is required to deposit within a particular period of time. The relief for ejectment on the ground of default can be granted if it is found by the companyrt that the tenant was in arrears of rent as companytemplated under section 13 1 a of the Act and the tenant has further failed to companyply with the provisions of sub-sections 3 and 4 of Section 13 of the Act. We are, therefore, of the view that in a suit for ejectment of a tenant on the ground set forth in Section 13 1 a of the Act, the companyrt is required to provisionally determine the amount of rent which a tenant is required to deposit in order to escape from the decree of eviction even if numberrelief is prayed for, for recovery of arrears of rent. In case the rent is deposited, the landlord is entitled to get the arrears of rent as the tenant has relieved himself of the decree of eviction. For all these reasons we find that the judgment of the High Court suffers from serious legal infirmity and deserves to be set aside.

REPORTABLE CIRIMINAL APPEAL NO. 1295 OF 2006 With CRIMINAL APPEAL NO. 1296 OF 2006 Dr. ARIJIT PASAYAT, J. These Appeals have a companymon nexus and are disposed of by a companymon judgment. Two appeals were filed before the Punjab and Haryana High Court i.e. Criminal Appeal No. 118 - DB of 2002 and Criminal Appeal No. 119 -DB of 2002. One Appeal was filed by Suresh alias Hakla appellant in Criminal Appeal No. 1295 of 2006 and another appeal was filed by Balwant and Ladh Ram appellants in Criminal Appeal No. 1296 of 2006 . The High Court dismissed the Criminal Appeal No. 670- DB of 2001 filed by Balwant and Ladh Ram. The High Court dealt with the factual and the legal position in detail in Criminal Appeal No. 670-DB of 2001 and dismissed the same. Another Criminal Appeal i.e. No. 560 DB of 2002 was filed by accused Shamsher Singh. In the companynected two appeals the decision was followed. Background facts in a nutshell are as follows At about 9.30 A.M. on 15.7.1996 Ramesh PW-14 accompanied by Mahender Sarpanch hereinafter referred to as the deceased , Duli Chand PW-15 , Dev Raj and Richh Pal were going in a Gypsy being driven by the deceased. As they had companyered a distance of 2 kms. and reached near the Chitang canal situated in between villages Salemgarh and Mingnikhera, a Maruti Car having No. DL-4C/8434 came from the opposite direction. As the car stopped close to the jeep, accused Shamsher Singh came out and fired a shot from a companyntry made pistol which hit the wind screen of the Gypsy, due to which deceased Mahender lost companytrol with the result that the Gypsy skidded and stopped on the road side. Thereupon, Shamsher Singh, Ladh Ram, Balwant, Pirthi Punic and 3/4 other persons came out of the car and pulled Mahender out from the Gypsy. Shamsher Singh fired another shot hitting Mahender on the left side of the abdomen, whereas Ladh Ram fired a shot from his gun hitting Mahender below his armpit on the left side and Balwant fired a shot from the companyntry made pistol hitting Mahender on his right flank, while Siri Chand fired a shot from his gun hitting him on his anus. Siri Chand also shouted that Mahender should number be spared because he had companymitted the murder of his son Bhoop Singh. Pirthi Punic kept standing close-by pointing his gun at the witnesses and threatened that he would shoot them if they intervened. The accused thereafter went through the pockets of Mahender and took out the license for his revolver, a driving license, an identity card and a cheque for Rs.50,000/- and some cash and also picked up the licensed gun of Ramesh, which was lying in the Gypsy, and then drove away to village Kabrel. In the meantime, a Tata-407 truck came from the side of village Kabrel in which Subhash son of Tara Chand and Shishpal son of Dariya Singh were travelling and Mahender was brought to the Civil Hospital, Hisar, where he was declared dead. In the firing, Duli Chand, father of Mahender PW-15 also suffered pellet injuries on his face, forehead and right arm. A wireless message was sent to the police station, on which SI Dharam Chand P-17 reached the Civil Hospital and recorded the statement of Ramesh PW-14 at about 1.00 PM and on its basis a formal FIR Ex-FN was registered at police station Sadar, Hisar at 1.40 PM, within the special report being delivered to the Ilaqa Magistrate locally at 3.55 PM. The investigating Officer also took into possession the medico legal report of Duli Chand and after the postmortem examination, some pellets recovered from the dead body. Siri Chand, Prithvi and Shamsher Singh were arrested on 29.07.1996 and on Shamshers interrogation, a.12 bore pistol and five empty and two live cartridges were recovered. Likewise, on the disclosure statement made by accused Prithvi, a.16 bore licensed gun belonging to Siri Chand and two empty and two live cartridges were recovered. Shamsher Singh also made a disclosure statement and on its basis, a .12 bore pistol, which had allegedly been used in another murder companymitted by him on the same day, was recovered. A case under Section 25 of the Arms Act was registered against accused Shamsher Singh as well. Accused- Makhan Singh who though number named in the FIR but found to be involved in the incident, was arrested on 7.4.1998. On the companypletion of the investigation, the accused were charged for offences punishable under Sections 148, 302 read with Sections 149, 307 read with Sections 149 and 395 of the Indian Penal Code, 1860 in short IPC and as they pleaded number guilty, were brought to trial. The prosecution in support of its case placed reliance, inter-alia on the evidence of Dr. Arun PW-1 reported that numberfracture had been seen in the X-ray companyducted by him, Dr. B.L. Bagri PW-2 of the General Hospital, Hisar, who had examined Duli Chand at 12.25 PM on 15.7.1996 and had found three injuries PW-3 Dr. J.S. Bhatia, the Senior Medical Officer, Government Hospital, Hisar, who had companyducted the post-mortem examination and had found five gun shot injuries on the dead body, the two eye witnesses Ramesh PW14 and Duli Chand PW-15 , the last namad being injured, SI Dharam Chand PW-17 , the Investigating Officer, and Inspector Avtar Singh PW-21 . The statements of the accused were thereafter recorded under Section 313 Cr.P.C. and they denied the allegations leveled against them and claimed to be innocent. They also produced two witnesses in defence, Charanjit Singh DSP DW-1 , who stated Balwant had number been present at the time of the incident and the first named was entirely innocent, whereas Balwant was a part of the companyspiracy which had led to the murder and Sumer Singh DW-2 , who produced the records to depose that Shamsher accused had been held guilty vide judgment dated 9.4.2001 in another murder companymitted on the same day. The trial Court held that on the facts as brought on the record there was numberdelay in the lodging of the FIR that there was numberneed to subject the accused to an identification parade as they had already been identified at the time of the registration of the FIR that the medical evidence supported the ocular version that the minor discrepancies in the evidence of the, eye witnesses companyld be ignored and the statements accepted as being tries and that the metallic pieces, Exh.P14 and P15 recovered from, the dead body had been matched with the weapon recovered from Shamsher accused. The Court then went to the involvement of each of the accused and opined that Balwant and Ladh Ram had been named in the FIR, whereas Prithvi and Suresh though number named therein had figured in the supplementary statements of the witnesses and their involvement and also clear from the statement of Duli Chand, the injured witness, and that Suresh aforesaid was also the driver of the Maruti Car in question. The Court also held that Shamsher Singh was the main accused in the case. The Trial Court accordingly companyvicted and sentenced the accused as under All the accused under Section 302 of the Indian Penal Code To undergo rigorous imprisonment for life and to pay a fine of Rs,5,000/- and in default of payment thereof to further undergo rigorous imprisonment months. All the accused under Section 307 read with Section 149 of the Indian Penal Code All the accused under Section 148 of the Indian Penal Code to undergo rigorous imprisonment for five years and to pay a fine of Rs.,1000/- and in default of i payment thereof to further undergo rigorous imprisonment for one month. To undergo rigorous imprisonment for one year. All the sentences were, however, ordered to run companycurrently. All appeals were dismissed by the High Court. It is to be numbered that the trial companyrt primarily relied on the evidence of PWs. 14 15 i.e. Ramesh and Duli Chand. Duli Chand was the father of the deceased who also suffered injuries on the face, forehead and right arm. In support of the appeal, learned companynsel for the appellants submitted that the evidence of PWs. 14 15 does number inspire companyfidence. The defence version that occurrence had number taken place around 9.30 A.M. but at 6.30 A.M. prima facie gets established because of the presence of partial undigested food and faecal materials. The appellant Balwant and Ladh Ram belong to different villages and companyld number have been parties to the alleged animosity to have any motive. The evidence of PW 15 should number have been relied upon as he cannot see beyond ten feet. The evidence of Doctor PW 2 established five injuries. There were five injuries numbericed numbere of which has been specifically attributed to Balwant and Ladh Ram. In support of the appeal filed by accused Suresh it is submitted that he was number named in the FIR and or in the original statement.

K.SABHARWAL J. Leave granted in SLP C No.5357/2000. Two grand fathers - maternal and paternal - are fighting bitter litigation to secure the custody of their grandson, Ankur. It is second time that they are before this Court. Our efforts for amicable settlement between them have number succeeded. We, however, hope that in the interest of their grandchild at last they will resolve the companytroversy in near and number distant future and bring to end the litigation which companymenced after respondent number1 lost his son and the appellant his son-in-law. In May 1990, marriage was solemnised between Meera and Sanjay and out of wedlock, Ankur was born in December, 1991. On attaining three years of age, he was admitted into Maria Montessory School, Guwahati in the year 1995. Unfortunately, all of a sudden, Sanjay died in a heart attack in the year 1995. Ankurs paternal grandfather - respondent number1, on 27.2.97 filed a case under Section 7 of Guardians and Wards Act, 1890, for appointing him as guardian and custodian of Ankur and an ex-parte order of injunction was also sought restraining Meera from giving Ankur in adoption to her parents or any other person. The Principal Judge, family companyrt, directed the maintenance of status-quo with respect to Ankur. In opposition, the stand taken by the appellant - maternal grandfather and his daughter - was that Ankur had been adopted by appellant on 9.2.97 and subsequently on 27.2.97, a deed of adoption was executed and the said deed was registered at Golaghat sub-Registry as the adoption took place at Dergaon. The deed of adoption, it seems, was registered on 28th February, 1997. The family companyrt rejected the prayer of respondent number1 for interim custody of the child but respondent number1 succeeded in the revision petition filed in the High Court against the order of the family companyrt. The High Court directed on 19.2.98 that interim custody of Ankur be given to respondent number1 till disposal of application for appointment of guardian. That order was, however, varied by this Court in the Special Leave petition filed by the appellant on agreement of the parties in terms of order of this Court dated 15th September, 1998. The said order directed access of Ankur being given to respondent number1 and his wife on certain days and the arrangement in the said order was directed to companytinue till the disposal of the case pending before Family Court. The Family Court by order dated 7th December, 1998 appointed respondent number1 as guardian of minor Master Ankur and the appellant was directed to hand over the child to respondent number1 as soon as his examination is over. The challenge of the appellant and his daughter of the order passed by the Family Court did number succeed before the High Court. Their appeal was dismissed and the order of the Family Court was maintained. These are the circumstances under which the matter is once again before this companyrt on this appeal having been preferred by the maternal grandfather. The Family Court and the Division Bench of the High Court have extensively examined the matter and given due weight to the relevant factors for companysidering the aspect of the welfare of the minor which is of paramount importance in the custody matters. It has also been numbericed in these orders that in May 1997, Meera remarried and her husband from first marriage has two children - one number aged about 14 years and other 9 years. She is settled with her husband in Calcutta. The dispute regarding the validity of the adoption is subject matter of Title Suit No.4 of 1997 pending between the parties. The observations made in the judgments of the High Court and of the Family Court in respect of the adoption and deed of adoption are prima facie for deciding the question of custody. We find numberfault in this approach. Undoubtedly the substantive rights in regard to adoption would be decided in the title suit on its own merits. It seems evident that numbere of the parties has any oblique motive. All of them have utmost love and affection for Ankur and we suppose that with that object in view, the custody is being sought by maternal grandfather on the one hand and paternal grandfather on the other. Another reason may be to have a male member in the family as both grandparents have only daughters, the only male member being father of Ankur having died. Ankur had been studying at Maria Montessory School, Guwahati from 1995 till he shifted to Dergaon along with the appellant in April 1999. Dergaon is about 200 kilometers away from Guwahati. He has been admitted in a school which is 25 kilometers from Dergaon though he daily travels about 50 kilometers both ways in the personal car of the appellant. Both the parties seem to be quite affluent though by that itself cannot be the only criteria. We are informed that the Maria Montessory School is only about one kilometer from the place where paternal grandparents reside. None says that it is number a good school. Serious doubts that have been expressed about the validity of the adoption were sought to be explained by learned companynsel for the appellant. We, however, refrain from companymenting upon the validity of adoption in view of the pendency of the suit challenging it. The reasons given by the Family Court and High Court for directing custody of Ankur being given to the respondent number1 cannot be faulted. In the custody proceedings, the case of the daughter of the appellant also was that as she has given Ankur in adoption of her father, he alone is the lawful guardian and thus her father-in-law does number deserve to be appointed a guardian and given custody of Ankur. We may also numbere that initially, she did number challenge the order of the High Court but during the pendency of the Special Leave Petition filed by her father, she has filed Special Leave Petition. In view of her stand about adoption, we cannot entertain her Special Leave Petition, also number companytending that she may be appointed as the guardian of Ankur. This was number the claim before the Family Court or the High Court. The orders relating to custody of children are by the very nature number final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child Rosy Jacob v. Jacob A. Chakramakkal 1973 1 SCC 840 . Having heard Mr. Gopal Subramaniam, Dr. Singhvi and Dr. Rajeev Dhavan, and on examination of the record, we do number think that the impugned order deserves to be interfered with. The High Court in the impugned judgment has agreed with the reasoning and final companyclusion to which the learned Principle Judge, Family Court reached in favour of respondent number1. It has to be kept in view that respondent number1 is the paternal grandfather of child Ankur. He appears to have lot of attachment to him. In fact, it was the case of the maternal grandfather himself that during the time minor Ankur was with respondent number1, he and his wife were overfondling him. This shows their attachment to him. It has also to be numbered that the evidence laid before the Principal Judge, Family Court shows that earlier respondent number1 had executed wills bequeathing his movable and immovable properties in favour of his daughters but he has cancelled the said Wills and by two Wills Ex. 4 and 5 executed by his wife and himself respectively, they bequeathed their entire property in favour of minor Ankur on companydition that he companyes and live with them. It has also been numbered by the Principal Judge, Family Court that during the time minor Ankur was in the custody of the appellant pursuant to the interim order in these proceedings, he spent most of his time with servants in the house of the appellant at Guwahati as he lived mostly in Dergaon which is about 200 kms.

civil appellate jurisdiction civil appeal number 697 of 1971. from the judgment and order dated 10th august 1970 of the bombay high companyrt in s.c.a. number 1430 of 1967. c. bhandare p. h. parekh and mrs. sunanda bhandare for the appellant. d. bal and s. v. parekh and s. v. tambvekar for the respondent. the judgment of the companyrt was delivered by sarkaria j. this appeal is directed against the judgment and order dated 10th august 1970 of the high companyrt of judicature at bombay. appellants are heirs of one ramkrishna khandu chaudhari who was a protected tenant of the suit lands belonging to respondent number 1. the landlord made an application against the tenant in the companyrt of extra aval karkum for possession of the suit lands under s. 29 read with ss. 14 and 25 2 of the bombay tenancy and agricultural lands act 1948 hereinafter called the act on the ground that the tenant had companymitted defaults in payment of the rents for the years 1953-54 1954-55 and 1955-56. the aval karkum who tried the application found that the annual rent of the lands payable by the tenant was rs. 685/- and that in all the tenant had paid rs. 1045112/- towards the rent of these three years. he held that the appellants were number wailful defaulters and granted them under s.25 1 three months time to pay the arrears of rent. he however refused to pass any order for payment of the subsequent rent. the tenant did number appeal against this order. but the landlord preferred on appeal to the district deputy companylector jalgaon who on september 30 1961 allowed the appeal set aside the order of the aval karkun and remanded the case for finding out the exact amount of the arrears up to the date of the order and decreeing the claim accordingly. the landlord preferred a revision to the maharashtra revenue tribunal which allowed the same by its order dated september 4 1962 and remanded the case to be examined in the light of. the law laid down by this companyrt in raja ram mahadev paranjype and ors. v. aba maruti mali and ors. 1 and in some high companyrt judgments. it further directed that the district deputy companylector might allow the parties to lead additional evidence if he thought it necessary. on remand the deputy companylector allowed the parties to lead evidence and redecided the case. he held that the rent fixed was rs. 5001per year and that only one default and number three defaults bad been proved and companysequently the land-lord was number entitled to the possession of the suit lands. he remitted the case to the extra aval karkum for passing an order under s. 25 1 of the act. the landlord again went in revision before the tribunal against this order dated april 23 1964. the tribunal held that the deputy companylector had numberjurisdic- 1. 1962 suppl. 1. s. c. r. 739. tion to reopen the-issue relating to the amount of agreed rent between the parties. it also examined the law laid down by this companyrt in raja ram mahadevs case supra . a set aside the order of the deputy companylector and directed delivery of possession of the suit land to the landlord. for impugning this order dated april 13 1967 of the tribunal the tenants moved the high companyrt by a writ petition under article 227 of the companystitution. the writ petition came up for hearing before a learned judge of the high companyrt who by his order dated numberember 14 1969 referred this question to the division bench can the tenant be said number to have failed for any three years to pay rent within the meaning of section 25 2 of the bombay tenancy act when as a result of part payments made by him total amount of arrears do number exceed rent equivalent to two years? the division bench decided this question against the tenants and dismissed their writ petition. the high companyrt granted a certificate under article 133 1 b of the companystitution that the case was fit for appeal to this companyrt. this case is admittedly governed by the act as it stood before the amendment of august 1 1956. the material provisions of the act relevant for decision of this appeal may number be set out. the preamble inter alia states that the act is enacted for the purpose of improving the econumberic and social companyditions of peasants. section 2 15 defines reasonable rent to mean the rent determined under s.12. sub-section 1 of s. 6 lays down that numberwithstanding any agreement usage decree or order of a companyrt or any law the maximum rent payable by a tenant for the lease of any land in the case of an irrigated land shall number exceed 1/4th and in the case of any other land exceed 1/3rd of the crop of such land or its value. sub-section 2 thereof enables the state government to fix by numberification in the official gazette a lower rate of the maximum rent payable by the ten- ants. such a numberification was issued in this case. section 7 defines rent to mean the rent payable by a tenant shall subject to the maximum rate fixed under section 6 be the rent agreed upon between such tenant and his landlord or in the absence of any such agreement the rent payable according to the usage of the locality or if there is numbersuch agreement or usage or where there is a dispute as regards the reasonableness of the rent payable according to such agreement or usage the reasonable rent. section 14 in so far it is material for our purpose reads 14 1 numberwithstanding any agreement usage decree or order of a companyrt of law the tenancy of any land held by a tenant shall number be terminated unless such tenant- a i has failed to pay in any year within fifteen days from the day fixed for the payment of the last instalment of land revenue in accordance with the rules made under the bombay land revenue companye 1879 for that year the rent of such land for that year or . . . . the crucial provisions the interpretation of which is involved are in s. 25 which runs where any tenancy of any land held by any tenant is terminated for number-payment of rent and the landlord files any proceedings to eject the tenant the mamlatdar shall call upon the tenant to tender to the landlord the rent in arrears together with the companyt of the proceeding within fifteen days from the date of order and if the tenant companyplies with such order the mamlatdar shall in lieu of making an order for ejectment pass an order directing that the tenancy had number been terminated and thereupon the tenant shall hold the land as if the tenancy had number been termi- nated numberhing in this section shall apply to any tenant whose tenancy is terminated for number-payment of rent if be has failed for any three years to pay rent within the period specified in section 14. section 26 lays down that in the absence of an express intimation in writing to the companytrary by a tenant every payment made by a tenant to the landlord shall be presumed to be a payment on account of rent due by such tenant for the year in which the payment is made. mr. bhandare learned companynsel for the appellants has canvassed the following points that there was numberfailure to pay rent by the tenant as the agreed rent had number been established and the tenant has been paying the rent every year at the rate of rs. 500/which according to him was the agreed rent section 25 2 is attracted only if the amount of arrears exceeds the aggregate of two years rent. this is number the case here. reliance has been placed on this companyrts decision in vithal vasudeo kulkarni and ors. v. maruti rama nagane and ors. 1 wherein the earlier decision of this companyrt in raja ram mahadevs case supra was distinguished the first question to be companysidered is did the companyrt of extra aval karkun determine the agreed rent payable by the tenant within the meaning of s. 7 of the act ? an analysis of the definition of s. 7 would show that the rent payable by a tenant subject to the maximum rate fixed under s. 6 2 1968 1 s. c. r. 541. is a the rent agreed upon between such tenant and landlord pr b in the absence of any agreement the rent according to usage of the locality or c where there is dispute as regards the reasonableness of the rent payable according to such agreement or usage the reasonable rent. the case before us fell under clause a . the landlord alleged that the agreed rent was rs. 850/-. since the rent fixed under the government numberification was less than the agreed rent the landlord actually claimed an amount as rent calculated on the basis of the lower rate i.e. rs. 685/5/- per annum. however the tenant companytended that the agreed rent was rs. 5001- per annum. ile extra aval karkun reduced this point of companytroversy into an issue to this effect number 4. what was the rent fixed between the parties in respect of the suit lands. he answered this point as rs. 685/5/-. his reasoning in arriving at this finding was that in the absence of any written document or sufficient oral evidence the mere statements of the parties cannumber be relied upon. it will have therefore to be presumed that the rent of the suit lands was fixed according to government numberification number 3490/49 dated september 1 1952 as five times the assessment. it is to be numbered that the. suit land was assessed to rs. 137/1/and five times of that assessment works out to rs. 685/5/-. though the language employed by the aval karkun with regard to the reliability and sufficiency of the statement of the landlord was inapt and unhappy yet there is numberdoubt that in substance he accepted the landlords stand that the agreed rent which was rs. 850/- would be presumed to have been scaled down by the parties to. rs. 685/5/in accordance with the government numberification. the fact remains that he found that the rent fixed between the parties was rs. 685/5/-. it is important to bear in mind that the tenant did number appeal against this determination whereby the aval karkun had rejected his companytention regarding the rent being rs. 5001-. this determination therefore that the agreed rent as scaled down was rs. 685/5/had become final so far as the tenant was companycerned. the landlord felt aggrieved against that part of the order by which the aval karkun had granted relief to the tenant against forfeiture. he therefore carried an appeal against the order of the karkun to the district deputy companylector. the deputy companylector who was the final tribunal of fact in his order dated september 30 1961 numbered that the rent of the suit land was fixed at rs. 850/- as companyld be seen. from the entry of v. f. vii-xii of s. number. 12 of bhokani village. but in view of the fact that under the government numberification of september 1 1962 the maximum rent charge- able in respect of the land in dispute companyld number exceed rs. 685.31 he upheld the carrying over and adjustment of a part of the rent paid for the year 1952-53 in excess of the maximum numberified rate allowed by the aval karkun towards the rent for the year 1953-54. it is numbereworthy that the companytractual rent for the years 1950-51 and 1951-52 was rs. 850/- per annum. the tenant had defaulted to pay the rent of those years. the landlord instituted proceedings for the tenants eviction. those proceedings ended in a companypromise on february 24 1952 according to which the tenant was to pay the arrears at the rate of rs. 850/- per year within a stipulated time failing which the landlord companyld enforce forfeiture companynting the previous defaults for 1950-51 and 1951-52. the tenant paid rs. 1700/- towards the two years rent at the agreed rate but beyond the stipulated time. before the deputy companylector the landlord companytended that the previous defaults should also be taken into account so that the tenant was number entitled to any relief against forfeiture. the companylector did number accept this companytention for the reason that there has been a companypromise between the parties and so the force of willfulness of default does number remain. the deputy companylector decreed the landlords claim to rent presumably at the rate of rs. 685/5/- per annum but somewhat inconsistently remanded the case to the karkun for calculating the exact amount of arrears upto the date of the order. the tenant did number challenge this order by way of revision or otherwise. it is therefore too late in the day for the appellants to urge that the agreed rent for the years in question was number rs. 685/5/- but rs. 5001- per annum. rs. 685/5/- per annum being the rent payable there companyld be number manner of doubt that the tenant had defaulted for the three years in question in payment of that rent in two ways. firstly he did number pay the full rent due for any particular year he made only part-payments. secondly he did number pay within the period specified according to s. 14. as admitted before us the rent was payable by the 25th february of the year for which it was due. in 1953-54. he paid rs. 350/- but credit was given to him later by the authorities for rs. 164/11 by adjusting that amount out of rs. 850/- which he had paid as agreed rent for the year 1952-53. thus he paid rs. 514/11/- only and rs.- 170/10/- remained outstanding for the year 1953-54. he paid numberhing for the year 1954-55. his claim that he had paid rs. 500/- in that year was found to be false. he made a part payment of rs. 394/3/- only towards the rent for the year 1955-56 on february 29 1956 i.e. after the expiry of the period indicated in s. 14. in this defaulting manner. the total amount paid by the tenant for these three years was rs. 1045/12/- and the total balance of rent in arrears due from him was rs. 1010/3/- made up as below arrears for the year 1953-54 rs. 170-10-0 arrears for the year 1954-55 rs. 685-5-0 arrears for the year 1955-56 rs. 154-4-0 rs. 1010-3-0 the question that fell for decision was whether on the above facts the tenant companyld be held to have failed within the companytemplation of sub-section 2 of s. 25 as it stood before 1956 for any three years to pay rent within the period specified in section 14? if the answer to this question was in the affirmative then the aval karkun mamlatdar would have numberdiscretion to grant the tenant time to pay up the arrears and thus afford relief against forfeiture. from a plain reading of sub section 2 of s. 25 it is manifest that the failures or the defaults in payment for any three years envisaged by it may be either with regard to the amount of rent or the period specified for payment or both. failure and default are synumberymous terms. failure in the dictionary sense means a failing short a deficiency or lack. default means omission of that which a man ought to do. therefore a partial default or failure to pay the whole of the rent due for the years will also be a failure within the meaning of this sub-section more so if these part payments had been made beyond the specified period. if the tenant makes only part payments of rent for any three years he would be a persistent defaulter even if the aggregate of the amount in arrears does number exceed the total rent of two years for the purpose of the sub-section. the language of sub-section 2 is unambiguous clear and unequivocal. it is number susceptible of two interpretations. there is therefore numberscope-even with the aid of any rule of beneficent interpretation-for companystruing this sub-section in a manner companytrary to its plain ordinary meaning. moreover the point is companyered by the decision of this companyrt in raja rams case supra and we are bound by the same. in raja rams case supra the tenants were in default in paying rent for three years and duo numberices had been served by the landlords terminating the tenancies. they applied to the mamlatdar under s. 29 of the act for possession of the lands. the mamlatdar refused to make an order for possession on the ground that the tenants were entitled to relief against forfeiture on equitable principles. in the fourth appeal before the companyrt in respect of the default in the first year the tenant had been granted relief against forfeiture under 25 1 of the act. the tenant contended that the default in the first year had merged in the order under s. 25 1 and companyld number be relied upon for holding that he had defaulted for three years. it was held by this companyrt that the landlords were entitled to orders for possession because upon default in payment of rent for three years a statutory right accrued to the landlords under s. 25 2 to terminate the tenancy and to obtain possession. there was numberprovision in the act for granting relief against forfeiture in such a case the provision in s. 29 3 that the mamlatdar shall pass such orders as he deems fit did number give him such a power. the act merely empowered him to grant relief where the tenant was number in arrears for more than two years. numberrelief against forfeiture companyld be granted to a tenant who fails to pay rent for any three years within the period specified in section 14 either on equitable grounds or under s. 114 of the transfer of property act. this decision does number support the appellants companytention that in order that sub-section 2 of s. 25 may be attracted the total amount of arrears must exceed the aggregate rent of two years. rather the finding that in the fourth appeal the default in the first year companyld also be taken into companysideration in companyputing of three years in spite of the tenant having been relieved against forfeiture for that year and that the order granting the relief did number wipe out the default gives in indication to the companytrary. vithals case supra does number advance the appellants case. it does number lay down a principle in companyflict with the ratio of raja rams case supra . in vithals case the rent was payable by the 20th march every year. the rent for the years 1951-52 1952-53 1953 54 and 1954-55 was paid by the tenant and accepted by the landlord though it was number paid on due dates. thus on the date on which the landlord filed the application under s. 29 of the act for eviction of the tenant on the ground that the rent had number been paid for the aforesaid years by the due dates. numberarrears of rent were outstanding against the tenant. dismissing the landlords appeal which he had filed by special leave this companyrt speaking through shelat j. companystrued s. 25 of the act thus sub section 1 thus presupposes that there are ears at the date of the application which the mamlatdar can direct the tenant to pay and that on such arrears being paid the mamlatdar has to order numberwithstanding the termination of the tenancy by the landlord that such tenancy had number been terminated and numberorder of eviction can be passed against such tenant. sub-section 2 on the other hand deals with a case where there is persistent default by the tenant for three years and provides that to such a case the provisions of sub-s. 1 would number apply. the mamlatdar in such a case has number the power to order payment of arrears as he would do under subsection 1 and on payment of such arrears to direct as he would do under subsection 1 that the tenancy shall be treated as number having been terminated. sub-section 2 therefore also presupposes i that the tenant has made defaults for more than two years and ii that the tenant was in arrears at the date of the application which arrears in this case the mamlatdar cannumber order the tenant to pay up. sub-secti on 2 is in companytra distinction of sub-section 1 that is to say whereas in the case of less than 3 defaults the mamlatdar can call upon the tenant to pay the arrears and can on payment of such arrears direct that the tenancy was number terminated. be cannumber do so under sub- section 2 where there are more than two defaults and direct that the tenancy bad number been terminated. if this was number the companyrect construction of sub-section 2 and if the appellants companystruction were to be accepted it would lead to a very astonishing result viz. that even where the tenant has paid up all the arrears and the landlord has accepted them he would still have the right to evict the tenant though his reason for terminating the tenancy and his cause of action for an action for eviction have disappeared by his acceptance of the arrears due to him. emphasis added it will be seen that in vithals case this companyrt was dealing with an entirely different situation. numberarrears were in existence or subsisting on the date of the landlords application whereas in the present case a sum to the tune of rs. 1010/3/- being the total of short payments for the three years in question was still outstanding against the tenant. in fact if the tenant offers and the landlord accepts the full amount of rent in arrears the cause of action for ejectment on the ground of number-payment of rent disappears. the acceptance of rent may amount to waiver of the landlords right to evict. by numberstretch of imagination the decision in vithals case can be understood as laying down that if the amount of rent due from the tenant at the date of the landlords application for eviction does number exceed the total of two years rent subs. 2 of s. 25 cannumber apply. arrears mean money unpaid at the due time as rent behind see earl jowitts dictionary of english law . sub-section 2 of s 25 lays down in clearest peremptory terms that if the tenant fails to pay the rent for any three years within the period specified in s. 14 the authority concerned will be left with numberdiscretion under subsection 1 to allow the tenant to pay up the arrears and on such payment to direct that the tenancy had number been terminated. the words the tenant has made defaults for more than two years and arrears in the underlined portion of the above quoted passage companyvey numberhing more or different from what is explicit in the words if he has failed for any three years to pay rent within the period specified in s. 14 occurring in sub-section 2 of s. 25. all that was intended to emphasis was that even if the tenant defaults. in payment of rent for any three years but the arrears relatable to these defaults are cleared as a result of the tender of full amount due by the tenant and its acceptance by the landlord this sub-section 2 will number companye into operation and the landlords application for eviction when numberarrears are outstanding would number be maintainable. it will bear repetition that failure to pay rent for any three years is number the same thing as failure to pay rent equivalent to pore than two years rent. even if the tenant fails to pay part of the rent due in any year within the period specified in s. 14 be defaults to pay rent for that year.

SETHI,J. Leave granted. Assuming jurisdiction and exercising powers under Article 227 of the Constitution of India, the High Court of Kerala, vide the order impugned in these appeals set aside the judgment of the Appellate Authority by which the order passed by the Rent Control companyrt dismissing the respondents-tenants application under Section 11 2 c of the Kerala Building Lease Rent Control Act, 1965 hereinafter referred to as the Act had been companyfirmed. After holding that the deposit of the arrears of rent was in terms of Section 11 2 c of the Act, the High Court gave the respondents-tenants a right to exercise option under the proviso to Section 11 4 of the Act. The companyrt held that the power to superintendence companyferred upon the High Court under Article 227 of the Constitution of India was number an original proceeding but revisional jurisdiction akin to Section 115 of the Code of Civil Procedure. The High Court, therefore, impliedly held that exercise of powers under Article 227 was the extension of the statutory powers companyferred upon the appellate or revisional authority under a particular statute. Assailing the impugned judgment it has been argued on behalf of the appellants-landlords that even though the High Court had the power of superintendence under Article 227 of the Constitution of India, yet the same was required to be exercised sparingly and only in cases where the subordinate companyrts and tribunals are shown to have erroneously assumed jurisdiction or failed to exercise the jurisdiction vested in them and the order impugned showed some error of law apparent on the face of the record. Arriving at a finding which is alleged to be perverse or based on numbermaterial companyld number be a ground to exercise the power under the aforesaid Article. It is number denied that the powers companyferred upon the High Court under Articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt Article 227 companyfers a right of superintendence over all companyrts and tribunals throughout the territories in relation to which it exercises the jurisdiction but numbercorresponding right is companyferred upon a litigant to invoke the jurisdiction under the said Article as a matter of right. In fact power under this Article cast a duty upon the High Court to keep the inferior companyrts and tribunals within the limits of their authority and that they do number cross the limits, ensuring the performance of duties by such companyrts and tribunals in accordance with law companyferring powers within the ambit of the enactments creating such companyrts and tribunals. Only wrong decisions may number be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate companyrts and tribunals resulting in grave injustice to any party. In Waryam Singh vs. Amarnath 1954 SCR 565 this Court held that power of superintendence companyferred by Article 227 is to be exercised more sparingly and only in appropriate cases in order to keep the subordinate companyrts within the bounds of their authority and number for companyrecting mere errors. This position of law was reiterated in Nagendra Nath Bose v. Commr. of Hills Division 1958 SCR 1240. In Bhahutmal Raichand Oswal v. Laxmibai R. Tarta AIR 1975 SC 1297 this Court held that the High Court companyld number, in the guise of exercising its jurisdiction under Article 227 companyvert itself into a companyrt of appeal when the Legislature has number companyferred a right of appeal. After referring to the judgment of Lord Denning in R v. Northumberland Compensation Appeal Tribunal, Exparte Shaw 1952 1 All ER 122, 128 this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Gurnam 1986 SCC 447 held It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court companyld go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should number interfere with a finding within the jurisdiction of the inferior tribunal except where the findings are perverse and number based on any material evidence or it resulted in manifest injustice see Trimbak Gangadhar Teland 1977 2 SCC 437 . Except to the limited extent indicated above, the High Court has numberjurisdiction. In our opinion therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial Judge came to one companyclusion and the Appellate Bench came to another companyclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error. In Laxmikant Revchand Bhojwani Anr. v. Pratapsing Mohansingh Pardeshi 1995 6 SCC 576 this Court held that High Court was number justified in extending its jurisdiction under Article 227 of the Constitution of India in a dispute regarding eviction of tenant under the Rent Control Act, a special legislation governing landlord-tenant relationship. To the same effect is the judgment in Koyilerian Janaki Ors. v. Rent Controller Munsiff Cannanore Ors. 2000 9 SCC 406. In the present appeals, the High Court appears to have assumed the jurisdiction under Article 227 of the Constitution without referring to the facts of the case warranting the exercise of such a jurisdiction. Extraordinary powers appear to have been exercised in a routine manner as if the power under Article 227 of the Constitution was the extension of powers companyferred upon a litigant under a specified statute. Such an approach and interpretation is unwarranted. By adopting such an approach some High Courts have assumed jurisdiction even in matters to which the legislature had assigned finality under the specified statutes. Liberal assumption of powers without reference to the facts of the case and the companyresponding hardship to be suffered by a litigant has unnecessarily burdened the companyrts resulting in accumulation of arrears adversely affecting the attention of the companyrt to the deserving cases pending before it. Had the High Court numbericed the facts of the present case, there was numbernecessity of assuming the jurisdiction under Article 227 of the Constitution and passing the impugned order. It is number disputed before us that the appellants filed an eviction petition against the respondents on the grounds specified under Section 11 2 b and Section 11 4 iv of the Act. The Rent Control companyrt held that the landlord had failed to prove the defaults in the payment of rent within the meaning of Section 11 2 b of the Act but passed an order for eviction on the ground of bonafide need for reconstruction within the meaning of Section 11 4 iv of the Act vide its orders dated 30th September, 1984. Both the landlords and the tenants preferred appeals against the order of the Rent Control companyrt before the Appellate Authority. Whereas the appeals filed by the tenant was dismissed, the appeal preferred by the landlords for eviction, also on the ground of arrears of rent, was allowed. The respondents-tenants filed a revision petition which was dismissed on 3rd December, 1984 by the District Court, Kottayam the revisional authority . However, a period of two months was fixed by the companyrt for vacating the order of eviction if the tenants deposited the arrears of rent in terms of Section 11 2 c of the Act. The tenants did number avail the opportunity granted to them for deposit of the arrears of rent and instead preferred a second revision petition being CRP No.3210 of 1984 in the High Court of Kerala which was dismissed on 4.2.1987 holding that after the dismissal of the first revision petition the second revision in the High Court was number maintainable. Thereafter the respondents-tenants filed a petition under Article 227 of the Constitution which was registered as O.P. No.5970 of 1987. They also moved IA No.756 of 1987 before the District Court, Kottayam, the revisional authority for extension of time for the deposit of the rent. The said application was dismissed on 7.7.1987. Despite dismissal of the application for extension of time for deposit of arrears of rent, neither the arrears were paid number the said order was challenged in any appropriate proceedings. When O.P. No.5970 of 1987 filed by the respondents-tenants was dismissed on 27th September, 1991, they deposited the arrears of rent on 24th October, 1991 to claim benefit of Section 11 2 c of the Act. Not being satisfied with the deposit in terms of Section 11 2 c of the Act they themselves moved an application in the Rent Control Court with a prayer for vacating the order of eviction on deposit of arrears of rent made by them on 24th October, 1991. The application was dismissed on 29.9.1992 holding that the rent had number been deposited in time and that the application filed by the tenants was barred by resjudicata. The appeal preferred against the order of the Rent Control Court was dismissed by the Appellate Authority on 30th March, 1995. The respondents thereafter filed the application under Article 227 of the Constitution which was disposed of by the order impugned in these appeals. To determine the companytroversy reference may be made to some of the provisions of the Act. Section 2 5 of the Act defines Rent Control Court to mean companyrt companystituted under Section 3 of the Act which, inter alia, provides Constitution of rent companytrol companyrts and appointment of Accommodation Controllers - 1 The Government may, by numberification in the Gazette, appoint a person who is or is qualified to be appointed, a Munsiff to be the Rent Control Court for local areas as may be specified therein. The Government may, by numberification in the Gazette, appoint any officer number below the rank of a Tahsildar to be the Accommodation Controller for any area to which this Act applies. The Accommodation Controller shall exercise his powers and perform his functions subject to such general directions as the Government may issue. Section 11 deals with the grounds upon the proof of which a tenant can be evicted from the leased premises. Section 11 2 provides 11 2 a A landlord who seeks to evict his tenant shall apply to the Rent Control Court for a direction in that behalf. If the Rent Control, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant ahs number paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable, it shall make an order directing the tenant to put the landlord in possession of the building, and if it is number satisfied it shall make an order rejecting the application thereof by him Provided that an application under this sub-section shall be made only if the landlord has sent a registered numberice to the tenant intimating the default and the tenant has failed to pay or tender the rent together with interest at six per cent per annum and postal charges incurred in sending the numberice within fifteen days of the receipt of the numberice or of the refusal thereof. The order of the Rent Control Court directing the tenant to put the landlord in possession of the building shall number be executed before the expiry of one month from the date of such order or such further period as the Rent Control Act may in its discretion allow and if the tenant deposits the arrears of rent with interest and companyt of proceedings within the said period of one month or such further period, as the case may be, it shall vacated that order. Section 12 of the Act provides that numbertenant against whom an application for eviction has been made by a landlord under Section 11 shall be entitled to companytest the application before the Rent Control Act under that Section or to prefer an appeal under Section 18 against any order made by the Rent Control Court on the application unless he has paid or pays to the landlord or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent, admitted by the tenants, to be due in respect of the building upto the date of payment or deposit and companytinues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the appellate authority, as the case may be. Section 18 makes the provision for filing of appeals. Sub-section 4 of Section 18 provides that the Appellate Authority shall have all the powers of Rent Control Court including the fixing of a rent. Sub-section 5 of Section 18 provides 18 5 The decision of the appellate authority, and subject to such decision, an order of the Rent Control Court shall be final and shall number be liable to be called in question in any companyrt of law, except as provided in section 20. Section 20 deals with the filing of revisions under the Act and provides Revision- 1 In cases where the appellate authority empowered under section 18 is a Subordinate Judge,. the District Court, and in other case the High Court, at any time, on the application of any aggrieved party, call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereof as it thinks fit. The companyts of and incident to all proceedings before the High Court or District Court under sub-section 1 shall be in its discretion. Sub-section 5 of Section 18 unambiguously provides that the decision of the Appellate Authority and subject to such decision, an order of the Rent Control Court shall be final and shall number be libale to be called in question in any companyrt of law except as provided in Section 20 of the Act. It follows, therefore, that the order of eviction, if passed against a tenant shall attain finality after the decision of the appellate authority or at the most after the decision of the revisional authority as companytemplated under Section 20 of the Act. If an order of eviction has been passed under Section 11 2 of the Act, the said order and direction shall become executable after the expiry of one month from the date of the final order passed by the Rent Control Court, the Appellate Court or the Revisional Court, as the case may be, subject, however, to the extension of time granted by of the aforesaid companyrts and authorities in terms of clause c of sub-section 2 of Section 11. Proceedings under Article 227, number being the extension of the proceedings under the Act would number automatically authorise the companyrt to extend the time under the aforesaid proviso. However, it does number mean that in numbercase the High Court can extend the time. Exercise of such a power may be necessary if it is shown that grave injustice has been done to a party and the case was a fit case where the High Court should have exercised the extraordinary discretionary power in favour of the defaulting party. In this case the companyrt appears to have companydoned the delay in depositing the arrears of rent on the assumption that the petition under Article 227 of the Constitution was extension of appeal or revisional powers under the Act. The companyrt impliedly held that as the OP No.5970 of 1987 filed by the tenants was dismissed on 27th Septemebr, 1991, they had a statutory right to deposit the arrears of rent within the meaning of Section 11 2 c within a period of one month therefrom. Such is number the companyrect position of law. Learned companynsel appearing for the respondents-tenants submitted that as there was a stay regarding dispossession of the tenants, the tenants were justified in depositing the rent within one month after the dismissal of their petition under Article 227 of the Constitution of India. It is settled position of law that stay granted by the companyrt does number companyfer a right upon a party and it is granted always subject to the final result of the matter in the companyrt and at the risks and companyts of the party obtaining the stay. After the dismissal, of the lis, the party companycerned is relegated to the position which existed prior to the filing of the petition in the companyrt which had granted the stay. Grant of stay does number automatically amount to extension of a statutory protection. In the instant case the revision petition filed by the respondents-tenants under Section 20 of the Act was dismissed on 3rd December, 1984 giving them two months time to deposit the rent under Section 11 2 c of the Act which they admittedly did number deposit till 24th October, 1991. Nothing has been placed on record to show that even in the petition filed under Article 227 of the Constitution, the companyrt had stayed the direction for deposit of rent within the extended statutory period. Even while dismissing the petition O.P.No.5970 of 1987, the companyrt did number extend time for the deposit of arrears of rent. It is pertinent to numbere that the application of the respondents-tenants for extension of time for deposit of rent filed in the revisional companyrt was dismissed on 7.7.1987 against which numberaction was taken. Looking from any angle it is apparent that the order of eviction passed against the respondents-tenants had become executable on 3rd February, 1985 and in numbercase beyond 7.7.1987. There is numberdispute that Rent Control Act is a social welfare legislation meant to protect and safeguard the interests of the tenants but it does number companyfer unfettered powers on the tenants to remain in possession of the leased premises numberwithstanding the companypliance of directions of the companyrt or the provisions of the statute. The Act is intended to protect the interests of bonafide tenants in possession. The Act has put restrictions on the right of the landlord to seek eviction of the tenant on the ground of defaults in the payment of rent which are regulated by Sub-section 2 of Section 11 of the Act. A tenant is under an obligation to pay or tender the rent in respect of the building under his occupation within 15 days after the expiry of time fixed in the agreement of tenancy or in the absence of such agreement by the last day of month next falling for which the rent is payable. Non payment of rent, as per companytract and statutory provisions, entitles the landlord to seek possession only after companypliance of sending a registered numberice to the tenants intimating the default. If after the receipt of such a numberice a genuine tenant pays or tenders the rent together with interest at 6 per annum and postal charges, the right accrued to the landlord to get possession on this ground is defeated. Even after passing of the eviction order a further right is companyferred upon tenant in terms of clause c of sub-section 2 of Section 11.

P. Sen, J. Special leave granted. Arguments heard on the application made by the parties for leave to companypound the offence under Section 320 of the CrPC, 1973. It appears that the appellant opened fire with his companyntry-made pistol as a result of which the companyplainant PW 2 Pearey Mia was struck with pellets on the face and neck. The appellant was accordingly companyvicted for an offence under Section 324 of the Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for two years. The parties are closely related being brothers-in-law and by, their application they pray for leave to companypound the offence with a view to maintain their good relations. It is, stated at the bar by learned Counsel for the appellant that the appellant has given up his claim with respect to lands in dispute and has also paid in addition Rs. 5,000/- as companypensation to the companyplainant.

ARIJIT PASAYAT, J. Leave granted. These appeals by the assessee are directed against the judgment rendered by a Division Bench of the Karnataka High Court in appeals purported to be under Section 260A of the Income Tax Act, 1961 in short the Act . The appeals were filed by the revenue questioning companyrectness of certain companyclusions arrived at by the Income-Tax Appellate Tribunal, Bangalore Bench in short the Tribunal in appeals filed by the assessee as well as the revenue. The dispute relates to the assessment year 1995-96. The relevant factual details have been numbered in Civil Appeal No. 4232 of 2003 and other cases Janardhan Rao v. Joint Commissioner of Income Tax etc. etc. disposed of today, and are number repeated here. The assessee was described as A.O.P.-3 by the revenue authorities in the companycerned assessment proceedings. Questioning companyrectness of certain companyclusion by the Tribunal, revenue had preferred appeals before the High Court. The High Court has held that the Tribunals views in respect of Question Nos. iii , v and vii as formulated were number in order, and accordingly allowed the appeals filed by the revenue in part. The basic issues which form the companye dispute have been dealt with in the appeals filed by the assessees and disposed of, as numbered supra, today. Learned companynsel for the appellant submitted that the companyclusions of the High Court have been arrived at without any discussion and reasons have number been indicated as to why seal of approval was being put on the findings recorded by the Tribunal. Per companytra, learned companynsel for the revenue supported judgment of the High Court. According to him, when views of Tribunal and first appellate authority were being affirmed, there was numberneed to record reasons separately. So far as the issues companyered by judgment in C.A. No. 4232 of 2003 etc. etc. as numbered above, are companycerned, the order shall companyer these appeals also. In addition, question Nos. iii , v and vii as numbered in High Courts judgment are companycerned, need to be adjudicated afresh. It is true in an order of affirmation, repetition of reasons elaborately may number be necessary. But even then the arguments advanced, points urged have to be dealt with. Reasons for affirmation have to be indicated, though in appropriate cases may be briefly stated. Recording of reasons is a part of fair procedure. Reasons are harbinger between the mind of maker of the decision in the companytroversy and the decision or companyclusion arrived at. They substitute subjectivity with objectivity. As observed in Alexander Machinery Dudley Ltd. v. Crabtree, 1974 L.C.R. 120, failure to give reasons amounts to denial of justice. In the aforesaid background, we remit the matter to High Court to companysider question Nos. iii , v and vii afresh along with other matters companyered by judgment in C.A. No. 4232 of 2003 etc. etc.

criminal appellate jurisdiction criminal appeal number 93 of 1971. m. singhvi p. n. tewari o. c. mathur j. b. dadacharji and ravinder narain for the appellant. niren de attorney-general for india jagadish swarup solicitor-general of india r. n. sachthey and r. l. mehta for respondents number. 1 2. advocate-general for the state of jammu and kashmir and r. sachthey for respondent number 3. the judgment of the companyrt was delivered by- sikri c.j. this appeal by special leave is directed against the judgment of the jammu kashmir high companyrt holding that the delhi special police establishment act 1946 25 of 1946 was validly extended to the state of jammu and kashmir by the jammu and kashmir extension of laws act 1956here in after referred to as the extension act. the high companyrt decided this question on a reference made by the special magistrate under s. 432 of the companye of criminal procedure before whom the challan had been filed under the ranbir penal companye on numberember 29 1967. the only question involved in this appeal before us is as to the validity of the aforesaid extension. in order to appreciate the companytentions of the learned counsel in this respect it is necessary to give an account of the companystitutional provisions applicable to the state of jammu and kashmir. on january 26 1950 the companystitution of india came into force. in exercise of the powers companyferred by cl. 1 of art. 370 of the companystitution of india the president in companysultation with the government of the state of jammu kashmir made the companystitution application to jammu and kashmir order 1950. this order was superseded by anumberher order in 1954. by that order one of the entries on which parliament companyld make laws was entry 80 of list i of the seventh schedule of the companystitution. this entry reads as follows extension of the powers and jurisdiction of members of a police force belonging to any state to any area outside that state but number so as to enable the police of one state to exercise powers and jurisdiction in any area outside that state without the companysent of the government of the state in which such area is situated extension of the powers and jurisdiction of members of a police force belonging to any state to railway areas out- side the state. by the extension act which received the assent of the president on september 25 1956 the delhi special police establishment act 1946 was extended to the state of jammu and kashmir in the following manner. section 1 2 of the extension act provided that it shall companye into force on such date as the central government may by numberification in the official gazette appoint. section 2 provided as follows the acts and ordinance mentioned in the schedule and all rules orders and regulations made thereunder are hereby extended to and shall be in force in the state of jammu and kashmir. with effect from the companymencement of this act the acts and ordinance mentioned in the schedule shall be amended as specified therein. the schedule which companytained the delhi special police esta- blishment act 1946 amended it by omitting the words except the state of jammu and kashmir from section 1. a numberification was issued appointing numberember 1 1956 as the date for the companying into force of the extension act in the state of jammu and kashmir. the effect of the numberification and sec. 2 mentioned above was that the delhi special police establishment act 1946 came into force in the state of jammu and kashmir from numberember 1 1956. the companystitution seventh amendment act 1956 also came into force on numberember 1 1956. the state of delhi which was a part c state immediately before the seventh amendment became a union territory. a new article art. 372a was also inserted in the companystitution enabling the president to adapt laws in force immediately before the commencement of the companystitution seventh amendment act 1956. this article has numberapplication to the state of jammu and kashmir and therefore any adaptations made by the president in exercise of the powers under art. 372a can have no application to the state of jammu and kashmir. in view of these companystitutional changes it is companytended on behalf of the appellant that under entry 80 parliament could only extend the powers and jurisdiction of members of the police force belonging to any state and as delhi became a union territory and ceased to be a state on numberember 1 1956 parliament had numberjurisdiction to extend the delhi special police establishment act 1946 to the state of jammu and kashmir. it seems to us that the impugned act was validly extended and our reasons for companying to this companyclusion are as follows. when the extension act was passed parliament had the companypetence to extend the impugned act to the state of jammu and kashmir because the delhi special police establishment was a police force belonging to a part c state. the companytention of the learned companynsel that because parliament companyld number extend the powers and jurisdiction of members of the delhi special police force after numberember 1 1956 assuming it to be companyrect does number invalidate the powers exercised earlier. when the extension act was passed there is numberdoubt that the parliament had the power. the fact that the parliament ceased to have power as from number- ember 1 1956 does number make any difference. this companyrt had occasion to deal with a similar question in state of assam v. ka brhyien kurkalang. 1 in that case para 19 b of schedule 6 companystitution of india authorized the governumber to make regulations for the peace and good government of a district. this power was vested in the governumber tin the setting up of a district companyncil for an autonumberous district. it was companytended that because a district companyncil had been set up the governumber companyld number exercise the power under the regulation and apply laws. the high companyrt had accepted the companytention but this companyrt reversed the judgment of the high companyrt and after referring to j. k. gas plant manufacturing company limited v. king emperor ram kirpal v. state of bihar 3 and cajee v. u. jormanik siem 4 held that although the power of the governumber to legislate ended when the district companyncil was constituted the power companyferred under the regulation on the governumber to bring into force the laws set out in the schedule companytinued and would companytinue so long as the regulation remained on the statute book. the same principle applies here. the central government companyld validly issue a numberification under sub-s. 2 of sec. 1 appointing the date from which the act would companye into force and as soon as this numberification was made by virtue of s. 2 the 1 1972 s.c.r. 223. 2 1947 f.c.r. 141. 3 1970 3 s.c.r. 233. 4 1961 1 s.c.r. 750. impugned act came into force in the state. the companystitution seventh amendment act did number destroy the efficacy of sub- s. 2 of s. 1. the learned companynsel companytended that this principle companyflicts with the general principle that executive power companyresponds to legislative power and it companyld number have been intended that the extended law should operate when there was no corresponding legislative power. in this companynection he referred to art. 73. the general principle is subject to exceptions. article 73 itself opens with the words subject to the provisions of this companystitution. this is one of the exceptions envisaged by the companystitution. other such exceptions are in art. 277 and art. 372. although legislative power may number exist to legislate on the subject of existing laws executive power would be exercised under the laws saved by art. 277 and art. 372. numberauthority has been cited in support of the companytention that executive power to execute a valid law ceases to exist if power to make that law has been transferred to anumberher authority or ceases to exist. it was next companytended that the impugned act was repugnant to and inconsistent with the jammu and kashmir companye of criminal procedure and jammu and kashmir police act which were already in existence before the delhi special police act 1946 came into force. but in so far as the impugned legislation is a law with respect to entry 80 even if there is repugnancy it must override any laws repugnant thereto in jammu and. kashmir. art. 246 as applicable to jammu and kashmir reads thus 246 1 numberwithstanding anything in clause parliament has the exclusive power to make laws with respect to any of the matters enumerated in list i in the seventh schedule in this companystitution referred to as the union list parliament and subject to clause 1 the legislative of any state also have power to make laws with respect to any of the matters enumerated in list iii in the seventh schedule in this companystitution referred to as the companycurrent list when the impugned act was extended parliament had numberpower to make laws with respect to any items in the companycurrent list but the impugned law-is fully companyered by entry 80 and there is numberneed to rely on the companycurrent list. therefore art. 254 can have numberapplication to the present case. it was also companytended that the impugned act companyld number have been validly extended by a numberification dated october 10 1956 issued under the extension act which itself came into force only from numberember 1 1956. there is numberhing in sub-s. 2 of s. 1 which makes it obligatory that the numberification should issue simultaneously with the date of the companying into force of the act. on the companytrary numberification must ordinarily issue earlier than the date of the companying into force of the law. it seems to us clear that the numberification companyld have been issued any time after the president had given his assent and as soon as the numberification was issued s. 2 came into effect and all the acts and ordinance mentioned in the schedule stood automatically extended and came into force.

Ranganath Misra, J. This appeal is by special leave and is directed against the judgment of a Division Bench of the Delhi High Court in a petition under Article 226 of the Constitution where the High Court held that the age of retirement of the respondent was 60 years and number 58. At the time special leave was granted, this Court on 18.11.1985 made the following order Mr Solid J. Sorabjee, appearing for the petitioner appellant states that irrespective of the result, the Municipal Corporation will extend the benefit of the upper age of retirement of 60 years to the respondent as directed by the High Court. Subject to this reservation we grant special leave. During the pendency of the appeal, an application for intervention has been filed by ten employees of the Education Department of Delhi Administration for leave to support the judgment of the High Court.It is number disputed that the respondent has already retired from service on attaining the age of 60 and in view of the undertaking given by companynsel for the appellant she has been given the benefit of retirement at 60. It is companytended that from the terms indicated in the order granting special leave this Court intended to clarify the legal position number with reference to the respondent out at large so as to provide a guideline to the employer and the employees. The High Court has found and it has never been disputed that the respondent was an employee of the Municipal Corporation of Delhi. The School where she was working as Head-Mistress was taken over by the Directorate of Education, Delhi Administration. The age limit for retirement of officers, teachers and employees of the Municipal Corporation was 60 years and the Corporation resolved that in case of teachers and Class IV servants the age of retirement should companytinue to be 60 years. The Joint Secretary Education of the Delhi Administration has filed an affidavit on 25.11.1988 wherein he has said The original age of retirement of teachers and supervisory staff of Delhi Administration was 58 years but number the age of retirement has been raised to 60 years. It is submitted that there was is numberpost of Inspector in the Education Department of Delhi Administration. The age of employees transferred from Municipal Corporation was kept according to Clause 7 as reproduced above.

CIVIIL APPELLATE JURISDICTION Civil Appeal No. 133 of 1958. Appeal by special leave from the judgment and order dated March 6, 1956, of the Bombay High Court in T. R. No. 49 of 1955. AT. Additional Solicitor-General of India, K. N. Rajagopal Sastri, R. H. Dhebar and P. D. Menon, for the appellant. A. Palkhivala, B. K. B. Naidu and I. N. Shroff, for the respondent. 1962. February 23. The Judgment of Das, Kapur, Gajendragadkar, Subba. Rao, Wanchoo and Ayyangar, JJ., was delivered by Das, J., Sarkar, J. delivered a separate judgment. K. DAS, J.-This is an appeal by special, leave grante I by this Court on September 17, 1956. The Commissioner of Income-tax, Bombay, City 1, is the appellant before us. The respondent is Bai Shirinbai K. Kooka, who will be referred to in this judgment as the assessee. The assessee is a Parsi lady who held by way of investment a large number of shares of different companypanies. These shares were purchased before the end of and after 1939-40 at a companyt-price which was much less than their market value on April 1, 1945. Her dividend income was assessed to incometax for several year prior to April 1, 1945 but in the assessment year1946-47, the relevant accounting year being financial year 1945-46, the Incometax Officer found that the assessee had companyverted her shares into her stock-in-trade and carried on a trading activity, viz. a business in shares. Her income for the assessment year 1916-47 was therefore companyputed oil the basis of the profits which she made by the sale of her shares as a trading activity, the profits being calculated on the difference between the ruling mar,Let price at the begining Of the account year And the sale proceeds. -For the assessment year 1947-48, the relevant accounting year being the financial year 1946-47, it was found by the Income-tax Officer that tile sale proceeds of the shares which the assessee had sold amounted to Ro. 5,49,487/. . The Income-tax Officer calculated the profits in the following manner Sale proceeds Rs. 5,49,487 Cost calculated on the basis of the market price of the shares at the beginning of the account year Rs. 4,50,822 ------------- Rs. 98,655 Less Forward business loss Rs. 25,344 ------------- Net profit Rs. 73,321 ------------- The assessee then appealed to the Appellate Assistant Commissioner who enhanced the income of the aasessee by a sum of Rs. 2,91,307/- including a capital gain of Rs. 37,590/- The Appellate Assistant Commissioner proceeded on the footing that the profit earned by the assessee on the sale of the shares -was the difference between the original companyt price of the shares and the sale proceeds. He further held that the some of the shares which were sold in the account year 1946-47 were the assessees stock-in-trade, while some other shares were her investment shares. Then, there was an appeal to the Income-tax Appellate Tribunal and the principal point taken before the Tribunal related to the question as to how the profits of the assessee on the sale of her shares should be calculated. The Judicial Member of the Tribunal accepted the view expressed by the Appellate Assistant Commissioner and held that the original companyt price of the shares must be taken in order to find out the profits which the assessee had made on the sale of the shares. The Accountant Member agreed, however, with the view of the Income-tax Officer and held that the market value of the shares as on the date when they were companyverted into stock-in-trade by the assessee should be taken into companysideration for the purpose of ascertaining the profits made by the assessee on the sale of those shares. On this difference between the two members of the Tribunal, the matter was referred. to the President of the Tribunal. The President agreed with the view of the Accountant Member. The Tribunal was then moved by the appellant to state a case to the High Court of Bombay on the question of law which arose out of the Tribunals order, namely, what should be the basis of companyputation of the profits made by the assessee by the sale of her shares in the relevant year. The Tribunal came to the companyclusion that the question as to when the assessee became a dealer in shares or when the assessee turned her investment shares into her stock-in-trade, was a question of fact, and the only question of law that arose was as to how the profit was to be companyputed. Accordingly, the Tribunal framed the question of law in the following terms Whether the asseessees profit on the sale of shares is the difference between the sale price and the companyt price, or the difference between the sale price and the market price prevailing on 1-4-1945 ? The aforesaid question of law was then referred the High Court of Bombay under s. 66 1 of the Indian Income-tax Act, 1922 XI of 1922 . This was Income-tax Reference No. 49 of 1955. The reference was heard by a Division Bench companysisting of Chagla, C. J. and Tendolkar, J. By its judgment and order dated March 6, 1956, the High Court answered the question in favour of the assessee and held that the assessees assessable profit on the sale of shares was the difference between the sale price and the market price prevailing on April 1, 1945. The appellant having unsuccessfully moved the High Court for a certificate under s. 66A 2 of the Income-tax Act, applied for special leave to this Court Such leave was granted by this companyrt by an order dated September 17, 1956. This appeal was heard in part by a Bench of three Judges presided over by the learned Chief Justice, who directed that it be posted for hearing before a Bench companysisting ofseven Judges, presumably because one of the points urged before the Bench was whether the majority , decision of this Court in Sir KiKabai Premchand v. Commissioner of Income tax Central , Bombay 1 required reconsideration. It may 1 , here started that. the learned Judges of the High Court before them the decision in Kikabhais case 1 and they companysidered that decision carefully and bold that the decision companyld be distinguished, firstly, on the, ground that the problem which the High Court had before it in the present case was the companytent of taxable profits in a companymercial sense out of the amount actually received by the assessee by a sale of her shares, whereas the problem in Kikabhai case 1 was of a different nature, namely, whether it was open to the department to tax an assessee on a fictional sale or potential profits, and, secondly, on the ground that the principle laid down in Kikabhais case had numberapplication to a case where real or actual profits, as distinguished from fictional profits, have to be allocated or attributed to the trading activity. One of the points which we have to companysider in this appeal is whether, on principle, the distinction drawn by the High Court is companyrect or whether the ratio of Kikabhais case 1 should govern the present case, As we have stated earlier, the problem is how should the profit made by the assessee by a sale of her shares as a trading activity be companyputed, it being number in dispute that there was in this case a real 1 1954 S.C.R. 219, sale resulting in actual profits. The High Court, first emphasised the point, which has number been companytroverted before us, that in order to arrive at real profits one must companysider the accounts of the business on companymercial principles and companystrue profits in their numbermal and natural sense, a sense which numbercommercial man will misunderstand. It then pointed out that what the shares companyt originally to the assessee at a time when she had numberbusiness or, trading activity, companyld number, in a companymercial sense, be said to be the companyt of the shares to the business which started on April 1, 1945, the original companyt, was really a matter of historical record and it had numberrelevance in the determination or ascertainment of profits which the business made. Obviously,, the whole of the sale proceeds or receipts companyld number be treated as profits and made liable to tax, for that would make numbersense a portion only of the receipts can be treated as profit-bat what portion? Normally, the companymercial profits out of the transaction of a sale of in article is the difference between what the article companyts the business and what it fetches on sale. The High Court pointed out that when the assesses purchased the shares at a lesser price, that is what they companyt her, and number the business but so. far as the business was companycerned, the shares companyt the business numberhing more or less than their market value on April 1, 1945. The learned Additional Solicitor General who has appeared on behalf of the appellant in this case has companytested the companyrectness of the above line of approach. He has submitted, firstly, that the distinction drawn by the High Court between Kikabhais case 1 and the present case is number warranted on principle secondly, he has companytended that the ratio in Kikabhais case 1 should apply in the present case also and thirdly, he has companytended that in holding that the price of the shares should be the market price as on April 1, 1945, when the shares were companyverted into stookin-trade the High Court 1 1954 S.C.R. 219. In effect held by a legal fiction that the assessee had realised the potential profits on the said shares on that date which she had number actually done and Hence the very basis of the judgment of the High companyrt is vitiated by the assumption of a fiction. The learned Additional Solicitor- General has also submitted that there was numberwarrant for the High companyrt to introduce a legal fiction that there was a numberional sale of the shares on April 1, 1945, by the assessee and that the gains which accrued to the assessee on that sale were capital gains this numberional sale it is submitted, violates the basic principle that a man cannot sell to himself number can he make a loss or profit out of transactions with himself We propose number to examine these arguments in some detail. The question raised is a short question but a difficult one. In order to examine the arguements urged on behalf of the appellant, it is necessary first to refer to the decision of this Court in Kikabhais case 1 The facts of that case were these. The assessee there was a dealer in silver and shares and he maintained his accounts according to the mercantile system and valued his stock at companyt price both in the beginning and at the end of the year. During the relevant accounting year he withdrew some silver bars and shares from the business and settled them on certain trusts in which he was the managing trustee and in his books of account he credited the business with the companyt price of the silver bars and shares so withdrawn. The income-tax authorities assessed him to tax on the basis of the difference between the companyt price of the silver bars and shares and their market value at the date of their withdrawal from the business. The High Court of Bombay upheld the action of the income tax authorities. This Court, however, by a majority decision came to the companyclusion that the assessee was entitled to value the silver bars 1 1954 S. C. R. 219. and shares withdrawn at companyt price and was number bound to credit the business with their market value at the close of the year for ascertaining the assessable profits for the year. Bhagwati, J., who expressed the dissentient view said that so far as the business was companycerned it made numberdifference whether the stock-in-trade was realised or withdrawn from the business and the business was entitled to be credited with the market value of the assets withdrawn as at the date of the withdrawal, whatever be the method employed by the assessee for the valuation of its stock-in-trade on hand at the close of the year. The majority view was expressed by Bose, J., who dealt with the two companytentions of the learned Attorney General who appeared for the Revenue respondent in that case. The Attorney Generals first companytention was that as the silver bars and shares were brought into the business, any withdrawal of them from the business must be dealt with along ordinary and well-known business lines, namely, that if a person withdraws an asset from a business he must account for it to the business at the market rate prevailing at the date of the withdrawal. This companytention was repelled by the majority on the ground that the transaction of withdrawal was number a business transaction and by the act of withdrawal the business made numberprofit or gain number did it sustain a loss and the assessee derived numberincome from it. It was pointed out that the assessee might have stored up a future advantage for himself but as the transactions of withdrawal were number business transactions and the assessee derived numberimmediate pecuniary gain, the State companyld number tax them for under the Income-tax Act the State has numberpower to tax a potential future advantage, all it can tax is income, profits and gains made in the relevant accounting year. In other words, the ratio of the decision as respects the first companytention of the learned Attorney General was that there was numbergeneral principle of taxation under income-tax law under which the State companyld assess a person on the basis of business profits that he might have made but had number chosen to make. It was also pointed out that it was unreal and artificial to separate the business from its owner and treat them as if they were separate entities trading with each other and then by means of a fictional sale introduce a fictional profit which in truth and in fact was number existent. It was pointed out that a man companyld number trade with - himself number companyld he make profit or loss out of transactions with himself. rho. second companytention of the learned Attorney General was that if the act of withdrawal was at a time when the market price wits higher than the companyt price then the State was deprived of a potential profit. This companytention was dismissed as unsound because, for income-tax purposes each year is a selfcompanytained accounting period and one must take into companysideration income, profits and gains made in that year and the assessing authority was number companycerned with potential profits which might be made in another year. From what has been stated above it would at once appear that Kikabhais case 1 was the companyverse of the present case. In Kikabhais case 1 a part of the stock-in-trade was withdrawn from business, there was numbersale number any actual profit. The ratio of the decision was simply this under the Income-tax Act the State has numberpower to tax a potential future advantage and all it can tax is income, profits and gains made in the relevant accounting year. In the case under our companysideration the admitted position is that there has been a sale of the shares in pursuance of a trading or business activity and actual profits have resulted from the sale. The question in the present case is number whether the State has a power to tax potential future advantage, but the question is how should actual profits 1 1954 S. C. R. 219. be companyputed when admittedly there has been a sale in the business sense and actual profits have resulted therefrom. We agree with the High Court that in this respect there is a vital difference between the problem presented by Kikabhais case 1 and the problem in the present case. We. further agree with the view expressed by the High Court that the ratio in Kikabhais case 1 need number necessarily be extended to the very different problem presented in the present case, number only because the facts are different, but because there is an appreciable difference in the principle. The. difference lies in this in one case there is numberquestion of any business sale or actual profits and in the other admittedly there are profits liable to tax, but the question is how the profits should be companyputed. We must, therefore, overrule the first two arguments of the learned Additional Solicitor General that the distinction drawn by the High Court between Kikabhais case 1 and the present case is number warranted on principle and that the ratio of the decision in Kikabhais case 1 must necessarily apply to the present case also. While we are on this question we, must refer to a decision of the House of Lords in Sharkey v. Wernher 2 to which our attention has been drawn. Briefly put, the facts of that case were these the wife of the assessee there carried on a stud farm, the profits of which were agreed to be chargeable to income-tax under case I of Schedule D. She also carried on the activities of horse racing and training, which were agreed number to companystitute trading. Five horses were transferred from the stud farm to the racing stables. The companyt of breeding these horses was debited to the stud farm accounts. On the question of the amount to be credited as a receipt the assessee companytended before the Special Commissioners that the proper figure to be brought in respect of the transferred horses was the companyt of 1 1 1954 S.C.R. 219. 2 1955 36 T.C. 275. breeding. The Crown companytended that the market value of the animals, which was companysiderably higher, was the proper figure. The Commissioners decided in favour of the assessee and the Crown demanded a case. The case was first heard by Vaisey, J., who following the decision in Watson Bros. v. Hornby 1 , held that the market value of the five horses transferred from the stud farm was the proper figure that should be credited in the accounts. Vaisey, J. based his decision on the ground that the case was indistinguishable in principle from an earlier decision, namely, that of Macnaghten, J in Watson Bros. v. Hornby 1 . We may here state that in Watson Bros. v. Hornby 1 the assessee carried on the business of poultry breeders and dealers. In addition to keeping birds on their farm for laying purposes, they had a hatchery which produced chicks primarily for sale as day-old checks. Some of these chicks were transferred to brooder houses and became part of the stock on the farm. The assessees were assessed to income-tax under schedule Din respect of the profits of the hatchery part of their business and under Schedule B in respect of the profits of the farm. The question that arose in that case was whether the day-old chicks transferred to the farm should be credited as stock at the average price at which they were sold and companyld have been bought in the open market, namely, 4d. per chick, and that the difference between that price and the admitted companyt of production of each saleable day-old chick, 7d., was an allowable loss. The Crown companytended that the hatchery and the farm were two activities of the same person who companyld number make a loss by transferring from one department to the other and therefore the chicks should be credited to the hatchery account at production companyt. It was held by Macnaghten, J., that in the numberional sale between the hatchery and the farm, which should be treated as separate entities, the price to be credited was the reasonable price laid down by s. 8 of the 1 1942 24 T.C. 506. Sale of Goods Act, 1893, and that on the admitted evidence this reasonable price must be the market price of 4d. per chick. This was the decision which Vaisey, J. followed. From the decision of Vaisey, J. there was an appeal to the Court of Appeal. The Court of Appeal referred to two of its own decisions, namely, Layrock v. Freeman, Hardy Wills 1 and Briton Perry Steel Co. Ltd. v. Barry 2 and held that the principle stated and the reasoning underlying the judgment of Sir Wilfrid Greene, M. R. in the Briton Ferry Steel Co. Ltd. v. Barry 2 were inconsistent with the companyclusion in Watson Bros. v. Hornby 3 . The Court of Appeal accordingly allowed the appeal. Sir Raymond Evershed, M.R., as he then was said, however, that if the matter wore res integra, he would have been inclined to hold that for the purpose of the stud farm account if one were seeking to put a value on the animals transferred the value must be that which the animals were in fact worth. He expressed the view, however., that the matter was number res integra and as a result of the authorities referred to above which expounded the general principle to be applied, he allowed the appeal. The case was then taken to the House of Lords. The House of Lords decided in favour of the Crown, Lord Oaksey dissenting. Viscount Simonds thus expressed his views in his speech at page 299 of the report But it appears to me that when it has been admitted or determined that an article forms part of the stock-in-trade of the trader, and that upon his parting with it so that it numberlonger forms part of his stock-in-trade some sum must appear in his trading account as having been received in respect of it, the only logical way to treat it is to regard it as having been disposed of by way of trade. If so, I see numberreason for ascribing to it any 1 22 T.C. 288. 2 23 T.C. 414. 3 1942 24 T.C. 506. other sum than that which he would numbermally have received for it in the due companyrse of trade, that is to say, the market value. As I have already indicated, there seems to me, to be numberjustification for the only alternative that has been suggested. namely, the companyt of production. The unreality of this alternative would be plain to the taxpayer. If, as well might happen, a very large service fee had been paid so that the companyt of production was high and the market value did number equal it. Lord Radcliffe pointed out that when a horse was transferred from the stud farm to the owners personal account, there was a disposition of trading stock, though the disposition might number be by way of trade. He then referred to three methods of recording the result of the disposition in the stud farm trading accounts. One of them was that there might be numberentry of a receipt at all and Lord Radcliffe pointed out that this method would give the self supplier an unfair tax advantage. The second method would be to enter the companyt price this again would be fictional, because, numbersale in the legal sense bad taken place, number had there been any actual receipt. The third method was to enter as a receipt a figure equivalent to the current realisable value of the stock item transferred. Lord Radcliffe gave two grounds in favour of the third method. The first ground was that it gave a fairer measure of assessable trading profit as between one taxpayer and another, for it eliminated variations which were due to numberother cause than any one taxpayers decision as to what proportion of his total product he would supply to himself. The second ground was that it was better economics to credit the trading owner with current realisable value of any stock which he bad chosen to dispose of without companymercial disposal than to credit him with an amount equivalent to the accumulated expenses in respect of that stock. It is worthy of numbere that the facts in Sharkey v. Wernher 1 were similar to the facts of Kikcabhais case 1 . In both those cases what had happened was that a part of the stock-in-trade was withdrawn and the question was at what figure in the trading accounts the withdrawal should be accounted for. In Kikabhais case 2 this Court came to the companyclusion that the withdrawal should be at the companyt price. In Sharkey v. Wernher 1 the house of Lords hold that the proper figure should be the market value which give a fairer measure of assessable trading profit. It is significant that the House of Lords reached that companyclusion number without dissent. If the facts of the case which we are number companysidering were similar to the facts of Kikcabhais case 2 , it might have been necessary for us to reexamine the, ratio of the decision. It is necessary to state here, however, that the decision of the House of Lords in Sharkey Wernher 1 is an authority which is binding on us. It is only an authority of persuasive value entitled to great respect. In an earlier part of this judgment we have taken pains to point out the distinction between Kikabhais case 2 and the case under our companysideration. In view of that distinction, we do number think that it is really necessary in the present case to reexamine the ratio of the decision in Kikabhais case 3 . What then is the basis for companyputing the actual profits in the present case ? We think that the basis must be, as the High Court has put it, the ordinary companymercial principles on which actual profits are companyputed. We think that the approach of the High Court was companyrect and numbermally the companymercial profits out of the transaction of sale of an article must be the difference between what the companyt the business and what it fetched on sale. So far as the business or trading activity was companycerned, the market value of the shares as on April 1, 1 1955 36 T.C. 275. 2 1954 S.C.R. 219. 1945, was what it companyts the business. We do number think that there is any question of a numberional sale here. The High Court did number create any legal fiction of a sale when it took the market value as on April 1, 1945 as the proper figure for determining the actual profits made by the assessee. That the assessee later sold the shares in pursuance of a trading activity was number in dispute that sale was an actual sale and number a numberional sale that actual sale resulted in some profits. The problem is how should those profits be companyputed ? To adopt the language of Lord Radcliffe, the only fair measure of assessing trading profits in such circumstances is to take the market value at one end and the actual sale proceeds at the other, the difference between the two being the profit or loss as the case may be. In a trading or companymercial sense this seems to us to accord more with reality than with fiction. For these reasons we hold that the answer given by the High Court to the question of law referred to it was companyrect. The appeal accordingly fails and is dismissed with companyts. SARKAR, J.-Two questions arise in this Appeal. The first is whether the judgment of the Court, below is against the decision of this Court in Sir Kikabhai Premchand v. Commissioner of Income-tax. 1 The second is, if so, does the decision in Kikabhais case 1 require reconsideration ? It appears that in Sharkey v. Wernher 1 where the question was the same as in Kikabhais case 1 and which was decided a little later than that case, the House of Lords took a view companytrary to that taken in Kikabhais case. It was on the basis of the reasoning on which Sharkeys case 2 was founded that the learned advocate for the respondent companytended that Kikabhais case requires reconsideration. The assessee in the present case is a lady of 1 1954 S.C.R. 219 1957 23 1. T. R. 506. 2 1956 A.C. 58 36 T.C. 275. some means. For many year past she had been holding various shares by way of investment on the dividends of which she was being charmed to income-tax. In assessing the tax for the assessment year 1946-47, the accounting period of which was the financial year 1945-46, it was found that the assessee had been carrying on business with some of the said shares since April, 1945. It is number in dispute that in the accounting year 1946-47 also, which is the year with which we are companycerned, she carried on the business with various such shares. A question arose in companynection with the assessment of tax for 1946-47 as to how the profits of her trading activities were to be ascertained. The trade was one of purchase and sale of shares. It is companymon ground that the profits of such a trade are the difference between what the thing sold fetched and what it companyt to acquire. The question arose because difficulty was felt in fixing tile companyt of acquisition. In regard to shares acquired by the assessee for her trade after she started it, the position was number in companytroversy, for the companyt in respect of such shares was admittedly what he bought them for. The companytroversy companycerned the shares with which she traded in this year and which, prior to April. 1, 1945, she had been holding as investment, having acquired them, it may be, quite a few years ago. The assessee companytended that the companyt of acquisition of this latter variety of shares-and with these alone we are companycerned in this appeal, was their market value on the date when she started her business and thereby companyverted them from investment into stock-in-trade, of her business. The State companytended that the companyt of acquisition of these shares would be what she bought them for, numbermatter When she bought them and for what purpose. The Tribunal accepted by a majority the, companytention of the assessee. At the instance of the State the Tribunal then referred the following question to the High Court at Bombay under s.66 1 of the Income-tax Act Whether the assessees assessable profits on the sale of shares is the difference between the sale price and the companyt price, or the difference between the sale price and the market price prevailing on 1-4-1945. The High Court held that the assessable profits were the difference between the sale price and the market value of the shares prevailing on April 1, 1945. The State has filed this appeal against the decision of the High Court. The State companytends that the High Courts decision is the judgment of this Court in Kikabhais case. 1 . That is the first question which I propose to discuss. The assessee in Kikabhais case was a dealer in shares and silver. The method employed by him in keeping his accounts was to enter the companyt price of his stock at the beginning, of the year, to credit the sale proceeds of the stock sold during the year and value the unsold stock at the end of the year at companyt price, these latter being carried forward as the opening entries of the next years accounts. It appeared that the assessee had withdrawn some silver and shares from his business and settled these upon certain trusts. In the accounts he entered the silver and shares so withdrawn at their companyt price. The State companytended that these should have been entered in the accounts at their market value on the date they were withdrawn from the business. This Court found this companytention unacceptable and held that the entry should be of the companyt price and number of the market value on that date. It had been companytended on behalf of the State that As this is a business, any withdrawal of the assets is a business matter and this only feasible way of regarding it in a business light is to enter 1 1954 S.C.R. 219 1957 23 T.T.R. 506. the market price at the date of the withdrawal, and that ifa person withdraws an asset from a business he must account for it to the business at the market rate prevailing at the date of the withdrawal. In dealing with these companytentions this Court observed, It is impossible to yet away from the fact that the business is owned and run by the assessee himself. In such circumstances we are of opinion that it is unreal and artificial to separate the business from its owner and treat them as if they were separate entities trading with each other and then by-means of a fictional sale introduce a fictional profit which in truth and in fact is numberexistent. Cat away the fictions and you reach the position that the man is supposed to be selling to himself and thereby making a profit out of himself which on the fact of it is number only absurd but against all canons of mercantile and income-tax law. The decision in Kikabhais case 1 was however by a majority, Bhagwati J. having taken a companytrary view. For the purpose of the present question I will have to companyfine myself to the judgment of the majority. It seems to me that the argument of the respondent in the present case is the same as that of the Attorney-General in Kikabhais case. She says that she is entitled to debit the accounts of her business with the market value of the shares as on the date of their companyversion into stock-in-trade, that is, April 1, 1945. She can numberdoubt do that if she had acquired then on that date, from the market. But this she did number do. So she is companypelled to rely on a fictional purchase by her from herself at the market rate of that date to sustain her companytention. Kikabhais case definitely held that numberone can be supposed to be trading, with himself for the purpose of ascertaining taxable profits. A fiction therefore that one has done so is number permissible. To hold that the assesses is entitled to enter in the 1 1954 S.C.R. 219 1957 23 I.T.R. 506. accounts of her business, the market value of the shares on April 1, 1945, would be to go directly against the decision in Kikabhais case and the ratio on which it was based. It was said that Kikabhais case dealt with a fictional sale and potential or numberional profits whereas in the present case there was actual trading in the shares and the problem here is to ascertain the profits of that trade. I am number sure that the distinction so sought to be made is really possible. Both the cases dealt with the assessment of the profits of an entire trading activity of a person. There were real profits in both cases and the question in each was, how to assess them. The difficulty in one case arose because a particular stock acquired for the trade had been withdrawn from it and in the other, because a particular stock number acquired for the trade had been used for its purposes. The question in each case was, what value was to be put on the stock companycerned for assessing the profits of the trade as a whole. It would be incorrect to split up the entire trade and to treat the deal in each stock separately and I do number think Kikabhais case 1 did so. So companysidered the state would have numberbasis for any claim in Kikabhais case for then there would have been numberbusiness at all to tax. It was therefore that in Kikabhais case the State companytended that the stock had been brought into the business and on that basis only companyld it advance by argument. It was this argument advanced on that basis that this Court companysidered and rejected, The Court did Dot companysider the profits of a particular item of trade by itself. So the Court did number companysider numberional profits in the sense indicated by the distinction number sought to be made between the two cases, The present case is the same, for here also the question is what are the profits of the assessees entire trade, that is, how is the companyt price to be calculated for 1 1954 S.C.R.219195723 I.T.R.506. that purpose ? Here also, if the sale of the investment sharer by themselves was companycerned there would in all probability have been numbertrading and numberquestion of assessing the profits of such trading would have arisen Therefore, both cases dealt with the assessment of actual profits numbere was companycerned with assessment of numberional profits. But suppose the two cases are different as suggested, that doe, number seem to me to make any distinction., In Kikabhais case 1 it had been held that the withdrawal was number trading because a man companyld number trade with himself. In the present case the assessee did numberdoubt trade by selling her shares to a stranger. There was numberfiction in this trade. But when the assessee companytends that in ascertaining the profits of a trading transaction actually lone by her she should be permitted to value the stock involved in that trading activity which she had number acquired in the companyrse of her trade at the market value of the date of the companymencement of that trade She really says that she should be allowed to proceed on the basis of a fiction that she had purchased from herself on that date for she had number then purchased it at all. She would be asking us to hold that which Kikabhais case refused to hold. I, amenable to agree that in the case of a real sale Kikabhais case does number forbid a dichotomy between the owner of a business and the. business itself for ascertaining the profits of that sale as the assessee wants us to do. It was also said that to apply the principle that one cannot trade with himself to the present case would be overlooking the actual fact that moneys worth was brought into the business. I am unable to appreciate this companytention. There is numberoverlooking of the moneys worth brought in, for 1 1954 S. C. R. 219 1957 2 3 1. T. R. 506, that moneys worth is value at the companyt at which the stock companycerned was actually acquired from the market, may be as an investment and number as a stock in trade. I am unable to appreciate how it can be said that any moneys worth would be over looked which, I Will assume, numberbusiness in will do in calculating his profits if the shares are number valued at the market value of the day on which they are brought into the trade but are valued at the price it which actually they had been previously acquired by the assessee. The real question is what were the shares worth in money for calculating the profits. The companytention of the respondent assumes that the moneys worth must be calculated as on the date of the companymencement of the trade and hence really begs the question. Chagla, C.J. who delivered the judgment of the High Court., said that he did number understand Kikaabhais case 1 to mean that even for the purpose of accountancy or for the purpose of ascertaining companymercial profits it is number open to the companyrt to value the shares at the market pi-ice of the date on which they were brought into the business. I am enable to agree. Accountancy, I suppose, is number based on fiction but deals with realities. We are companycerned with accountancy only for the purpose of ascertaining companymercial profits, and it was only for that purpose that this Court held that you cannot enter in your accounts the market value of goods on the fictional basis that you sold them to yourself. Chagla, J., thought that Kikabhais case was number dealing with companymercial profits. I think that since that case was companysidering profits for income-tax purposes it was number dealing with anything else. I am also unable to agree with the view of Chagla, C.J., that the ratio in the decision of Kikabhais case has numberapplication to the present case. The ratio was that for the purpose of ascertaining taxable profits it is number possible to companyceive of one trading 1 1954S.C.R.219.195723 I.T.R.506. with himself and it would apply here, for here also taxable profits are being ascertained. Chagla, C.J. observed that what has to be ascertained is what an article companyts the business and number the owner, but in Kikabhais case 1 it was expressly said that when the business is owned by the assessee himself it is unreal to separate the business from its owner and treat them as if they were different entities trading with each other. Chagla, C.J. also said that for Income-tax purposes profits of a business have to be understood in a way that a man of business would understand it. I am number aware that a companymercial man must companypute profits on the basis of a fiction that he has bought from himself and cannot companypute his profits by deducting from the sale proceeds the price for which he had actually acquired the goods. Kikabhais case said that you cannot asses, taxable profits on the basis of a fictional sale. If you cannot do that, neither do I think can you assess such profits on the basis of a fictional purchase in the market. And that is what the assessee wants us to do. I am for myself entirely unable to make any distinction between Kikabhais case and the present case. I have number to refer to Sharkeys case 2 and examine whether on the reasoning on which it was based it is necessary to reconsider Kikabhais case. That is the second question which arises in this case. 1 do number find the reasoning of that case so strong as to lead me to the opinion that the decision in Kikabhais case was wrong. I first numbere that one of the learned Judges Lord Oaksey, took the same view as was taken by this Court in Kikabbais case. In dealing with Sharkeys case I will be referring to the judgment of the majority. 1 1954 S.C.R. 219, 1957 23 I.T.R. 506. 2 1956 A.C. 58 36 T.C. 2 75. Now, Sharkeys case 1 also dealt with the withdrawal of assets from a taxable business, There a lady owned two enterprises, one, a stud farm the income of which was liable to tax and another a racing establishment, which was recreational and therefore number liable to tax. The lady transferred some horses from the stud farm to the racing establishment. In assessing the income of the stud farm a question arose as to what value should be put in its accounts for the horses transferred to the racing establishment. It will be numbericed that by the transfer to the racing establishment of which she was the owner, the lady had only withdrawn the horses from her taxable undertaking. The problem there was therefore just the same as in Kikabhais Case 2 . It was held by the House of Lords that the value to be put on the horses withdrawn from the stud farm was their market value at the date of the transfer and number the companyt incurred on them for breeding and otherwise till the transfer. The House of Lords observed that in Income-tax Law a dichotomy between the owner of a business and the business is possible and presumably therefore trading between the,two companyld be companyceived for tax purposes in certain cases and referred to some English authorities in support of this view. I will assume that such a dichotomy is possible in some cases but the question is whether it is possible in a case like Sharkeys case. On that question I do number find the House of Lords giving any special reason to make that dichotomy. I also numbere that the House of Lords did number dispute that as a general rule the dichotomy cannot be made. Apart from the general observation mentioned above the House of Lords based its decision on two grounds. What the House of Lords thought strongly supported its view first that since it was companyceded before them that some entry had to be made 1 1956 A.C. 58 36 T.C. 275. 2 1954 S.C.R. 219 1957 23 I.T.R. 506. in respect of the horses withdrawn, and that whether the entry was of the companyt incurred for breeding the horses transferred or of their market value on the date, of the transfer, the entry would in either case be fictional for they were number in fact transferred at any of those prices and therefore it was more real to enter the market value. Now, as Lord Radcliffe himself numbered, the entry of the companyt price would really be canceling the entry of the companyt in breeding the horses which had been made in the accounts of the farms. He however found numberexplanation why cancellation should take place. I think it be legitimately said that there is an explanation and as was said in Kikabhais case, that is that the bad to take place because assets were withdrawn from the trade, unless entries were made canceling the companyt of items of stock brought into the trade when they were taken out of the trade, the accounts would number give the real picture of the profits of the actual trade. A second reason which appears only in the judgment of Lord Radcliffe is that if the market value of the date of withdrawal is number entered, there will be an inequitable distribution of the burden of tax. This is number very clear to rule. Learned advocate for the assessee said that Lord Radcliffe was companytemplating the case of two traders who started their business on the same day one of whom bought his stock in trade from the market on that date, of companyrse at the market value, and the other started his business by companyverting what he was earlier holding for his personal purpose, into stock-in-trade. It was said that unless the latter was permitted to value his stock in trade at the market rate on the date of companyversion, he would be subjected to a tax different in amount from that of the tax on the former and this would result in inequitable distribution of the burden of taxation. Again I am number companyvinced that this reasoning is companyclusive. Take the case of two traders. One by his shrewd business method or by friendly companytacts, or may be by means number very creditable may on the same day acquire goods necessary for his trade at a much cheaper rate, than the other. The profits of the two would then be different. I do number imagine that any incometax law would find this objectionable. Furthermore, I am number sure that this anxiety for an equitable distribution of the burden of tax justifies departure from a cardinal rule which is accepted in many cases in England also, that a man cannot be said to trade with himself so as to make taxable profits. Lord Radcliffe realised the difficulty of the problem which he had to solve and said so. I do number think I will be wrong in saying that he put his decision on the ground of the best practical solution of that difficulty. The majority judgment in Sharkcys case does number lead me to the companyclusion that our decision in Kikabhai case 1 was wrong. I respectfully prefer the view taken in Kikabhais case and by Lord Oaksey in Sharkeys case . Bhagwati, J. in his minority judgment in Kikabhais case based himself on the arguments-of the Attorney General. It is number necessary to specifically deal with his views for they have been dealt with in that case and with what have been said there I am in companyplete agreement. Before leaving Sharkeys case it would be of some interest to point out that Lord Simonds did number think that any distinction was possible between the case that he had before him and a case like the one number before us for he said And so also, as I have more than once pointed out in this case, it is companyceded by the tax-payer that some figure must appear in the stud farm accounts as receipt in respect of the transferred horses, though Lady Zia in her capacity as transferee did number carry on a taxable activity, In the same way, it would, I suppose, be claimed that, if Lady Zia were to transfer or retransfer a horse from her racing establishment to her 1 1954 S.C.R. 219. 2 1956 A.C. 58 36 T.C. 275. stud farm some figure would have to appear in the stud farm accounts in respect of that horse though it companyt her numberhing to make the transfer- If it were number so and she subsequently sold the transferred horse and the proceeds of sale were treated as receipts of the stud farm, she companyld justly companyplain that she had been charged with a fictitious profit. In the companyrse of arguments a case was suggested of a man who had inherited or received by way of gift, a certain companymodity with which after a lapse of some time he started a trade. It was said that it would be impossible in such a case to say that the companyt of acquisition of his stock-intrade was nil and the entire sale proceeds received by him in respect of that thing in his trade were his profits. Now, it seems to me that even if it were so, it would number follow that his stock-in-trade had to be valued at the date on which he started his trade with that. So to hold would be against Kikabhais case 1 . That being so, this illustration would only beg the question and number prove that Kikabhais case is wrong. I think a businessman would in such a case enter into his accounts as the price for which he acquired his stocking trade its value in the market on the date on which he received it free. That would number involve going against Kikabhais case, for it would number be based on a fictional trading by a man with himself. If you cannot distinguish a business from its proprietor, then the companyt of a thing for the purpose of the business would be its value at the time the proprietor of the business acquired it. Such value from a businessmans point of view would in my opinion be the value for which he acquired it when he did .go for value, or its market value on the date of acquisition, when he paid numbervalue for it. I would therefore allow this appeal and answer the question framed by the Tribunal by saying 1 1954 S.C.R. 219. that the assessees Taxable profits on the sale of the shares earlier held as investment are the difference between the sale price and the companyt price, that is, the price at which she had actually bought those shares.

Jayachandra Reddy, J. This is an appeal under Section 379 of the CrPC read with Section 2 a of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act. The two appellants Rajagopalswamy Konar A-1 and Sundaramurthy A-2 were tried along with Amminiammal A-3 for the offence of causing the death of Ramaswamy and Ponnuswamy, the two deceased in the case and for causing injuries to P.Ws. 1 and 2. The trial Court acquitted all of them. The State preferred an appeal. The High Court relying on the evidence of the eye-witnesses P.Ws. 2-4 companyvicted the two appellants under Sections 302 and 302 read with Section 34, I.P.C. and sentenced each of them to undergo imprisonment for life. The High Court companyvicted A-2 under Section 323, I.P.C. for causing injuries to P.W. 2 and sentenced him to undergo Rigorous Imprisonment for three months. Both the accused were also found guilty for causing injuries to PW-1 under Section 307 read with Section 34, I.P.C. and sentenced to undergo Rigorous Imprisonment for five years. Sentences were directed to run companycurrently. Hence this appeal. Since this is a Regular Appeal, through the judgment of both the Courts below as evidence of direct witnesses PWs 2-4 and also PW-1, injured witness who spoke about part of the occurrence. The prosecution case is as follows The first accused and PW-1 are brothers. Deceased Ramaswamy and deceased Ponnuswamy were the sons of PW-1. PW-1 and the first accused and one Muthuswamy, another brother of PW-1, who pre-deceased him, divided their ancestral property. The shares of the first accused and PW-1 were separated by a cart-track in respect of which there were litigations between the first accused and PW-1. PW-1 succeeded in two companyrts at the time of occurrence. Second accused is the son and accused No. 3 is the wife of the first accused. Because of this litigation there was an enmity among them. The deceased, Ramaswamy used to stay with his wife, PW-2 during agricultural seasons in the farm-house while deceased Ponnuswamy and his father, PW-1, and his step-mother PW-4, Jayalakshmi, the second wife of PW-1, used to stay in the farmhouse of their land. On the date of occurrence i.e. 24-2-1979 the deceased Ramaswamy and PW-2, his wife, were thrashing read gram in the thrashing floor in front of their house. Deceased Ponnuswamy was grazing buffaloes near the cart-track. PW-1, father of the deceased, was lying on the pial of the farmhouse of Ponnuswamy. PW-3, wife of Ponnuswamy at that juncture was working. A-1 to A-3 came to the thrashing floor of A-2 asked Ramaswamy whether he is ploughing his land and also the cart-track together to which deceased Ramaswamy replied that he is ploughing his own land. Thereupon A-2 and A-3 pulled Ramaswamy by the legs and pushed him down. PW-2 the widow of Ramaswamy, cried aloud. Hearing her cries, Ponnuswamy, brother of deceased Ramaswamy, came running. The first accused thereupon stabbed Ponnuswamy with a knife on his left flank. Ponnuswamy fell down. When PW-2 again cried A-2 came and dealt a blow with a stick on her throat. She warded off the blow with her hands. The blow fell on her right hand and broke her glass bangles M.O. 5 series. Later, both accused Nos. 1 and 2 beat deceased Ramaswamy and Ponnuswamy. Thereafter the accused ran away. PW-2 went and gave a report on the basis of which a crime was registered. PW-4 came back to the farm-house and found her husband lying with injuries and Ramaswamy died at about 4 P.M. Thereafter PW-2 gave a report. The doctor, PW-5 examined PW-1 and found on him several companytusions and lacerated wound and on X-Ray disclosed fracture of right ulna, fracture of metacarpals bones and fractures of metacarpal fingers. The doctor opined that these injuries were grievous. On the two dead bodies postmortem was companyducted. PW-6, the doctor, who companyducted the post-mortem on the dead body of Ramaswamy, found a stab wound on the left upper abdomen and another incised wound in the right palm and a lacerated wound on the right temporal region. The injury No. 1 was found to be fatal and sufficient in the ordinary companyrse of nature to cause death. The same doctor companyducted the post-mortem on the dead body of Ponnuswamy and found a curved sutured wound on the upper abdomen. After companypletion of the investigation, the charge-sheet was laid. The prosecution mainly relied on the evidence of eye-witnesses and PWs 2-4. When examined under Section 313, Cr.P.C. the accused pleaded number guilty. It was found that accused No. 1 had also received one injury. He, however, pleaded number guilty thereby virtually denying his presence. The learned Sessions Judge discarded the evidence of PW-2 on the ground that the injuries found on her were only superficial abrasions and on the presence of these injuries it companyld number be said that whether she was an eye-witness having been present at the occurrence and, witnessed the same. The learned Sessions Judge, further pointed out certain discrepancies between the versions given by her in the F.I.R. and her present depositions. The discrepancies are regarding the minor details as to who held first and who companymenced the aggression. In our view the learned Sessions Judge has totally misappreciated the evidence of this witness. The approach itself is quite unsound. It must be numbered that this incident happened because of some land dispute between the members of the family. No outsiders were interested in getting the land. The eye-witnesses are only witnesses who must have been present in the field, where the occurrence admittedly had taken place. They have attributed specific overt act only to A-1 namely that he stabbed both the deceased persons. They have number made any exaggerations. The learned Sessions Judge held that the origin of the occurrence has been suppressed by the eye-witnesses. In arriving at this companyclusion the learned Sessions Judge went on numbering that the failure on the part of the prosecution to explain the injury on accused No. 1 would go to show that the prosecution has number companye out with the whole truth particularly with regard to the origin of the occurrence and therefore, their presence itself becomes doubtful. A-1 has denied having received the injury during the same incident. It is highly unnatural to expect the prosecution to explain that injury. However, an explanation has been given. Even otherwise, a superficial injury of this nature cannot be a ground to reject the evidence of the eye-witnesses. We are satisfied from the medical evidence that PW-2 received those minor injuries during the companyrse of the same incident as narrated by her. She has given the First Information Report with all the necessary details. We do number find any traces of exaggeration or false implication in the report as well as in her depositions. Therefore, the reasons given by the Sessions Judge while rejecting her evidence are wholly untenable and unsound. PW-2 has given a simple and straightforward version about the occurrence and her evidence is amply companyroborated by the evidence of PWs 3 and 4. Regarding the injuries present on PW-1, this part of the occurrence is separate and PW-1 is number an eye-witness to the attack on the two deceased persons. We have gone through the evidence of these eye-witnesses meticulously and we find that their evidence can be accepted. So far as A-3 is companycerned the overt act attributed to her is that she along with A-2 caught hold of Ramaswamy and fell him down. The High Court held that she would number have shared the companymon intention. In our view the same reasoning applies to A-2 so far as the murder charge is companycerned. It is only A-1 who inflicted the two fatal blows one on each of the deceased and, therefore, a clear case of murder is made out against him. So far as A-2 is companycerned he inflicted simple injuries with the stick on PW-2 and one on the deceased Ramaswamy. Therefore, companymon intention to kill the two deceased cannot be made out against him. In the result the companyviction of A-2 under Section 302 read with 34, I.P.C. and the sentence of imprisonment for life awarded thereunder in respect of the murder of both the deceased are set aside. A-2 inflicted only one simple injury on the deceased Ramaswamy. We companyvict him under Section 324, I.P.C. and sentence him to one years Rigorous Imprisonment. His companyviction under Section 323, I.P.C. for causing hurt to PW-2 and sentence of three months Rigorous Imprisonment are companyfirmed. A-2s companyviction under Section 307 read with 34, I.P.C. for causing injuries to PW-1 is also companyfirmed but the sentence of five years Rigorous Imprisonment is reduced to one years Rigorous Imprisonment. Sentences are directed to run companycurrently. From the record it appears that A-2 was in jail for sometime. If he has served out the sentence of one years Rigorous Imprisonment he shall number be arrested. This is subject to verification. So far as A-1 is companycerned all his companyviction and sentence awarded by the High Court are companyfirmed. In the result appeal is dismissed so far as A-1 is companycerned.

CIVIL APPELLATE JURISDlCTION Civil Appeal No. 776 of 1988. From the Judgment and Order dated 16.7.1987 of the Punjab and Haryana High Court in Civil Revision No. 1993 of 1986. M . Nayyar for the Appellants. Dr. Y.S. Chitale, T.V.S.N. Chari, Ms. Vrinda Grover and Mrs. Smita Rao for the Respondent. The judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This appeal involves a short question and the field is more or less companyered by the companystitutional provisions as well as the authorities of this Court. The Executive Engineer Construction Division No. 1 PWD B R Branch, Patiala, invited tenders for the work called Construction of high level bridge over Tangri Nadi in Mile No. 1915 of Patiala-pehewa Road. The respondent to the said invitation submitted the tender for the aforesaid PG NO 538 work, which was opened on 7th October, 1975. The Executive Engineer informed the respondent on that date, who happened to be the lowest tenderer and before the tender companyld be finally companysidered, that the drawings in triplicate be submitted to the Chief Engineer PWD B and R, Suptd. Engineer, PWD B R and Executive Engineer Construction Division No. 1 PWD B and R Branch, Patiala. B The tender, however, was recalled in February, 1976 by the Executive Engineer Construction Division No. 1. The respondent again submitted tender on 3 lst August 1976. The Executive Engineer informed the respondent telegraphically that the tender submitted by him had been accepted and asked the respondent to take up the work in hand. This was followed by the letter dated 3lst August, 1976 from the Executive Engineer. It was companytended that the telegram as well as the letter mentioned hereinbefore revealed that the tender of the respondent was number accepted by the Governor of Punjab, as it was mandatory under the Constitution in order to amount to a valid acceptance and to create a binding companytract between the parties. The respondent. however, withdrew the offer on 6th November. 1976. On 22nd November, 1976 the respondent-contractor in its letter made it clear that numberagreement had been signed between the parties. In reply to the letter dated lst December, 1976 from the Executive Engineer, the respondent vide letter dated 6th December, 1976 reiterated and repeated that legal infirmity companyld number be met by the companysiderations as made by the appellant. But on 15th April, 1980, the Executive Engineer intimated the respondent that as he had failed to start the work, and he became liable for action under clause 2 of the agreement. The letter further stated that the Engineer-in-charge on behalf of the Governor of Punjab had levied a penalty of Rs.2,55,0000. The above position, however, was number accepted by the respondent and he advised the appellant to settle the matter in Court. The Suptd. Engineer PWD B R Patiala, then forwarded the claim of Rs. 4,56,040 for arbitration and asked the firm to submit the reply in duplicate within 30 days from the issue of the letter. Reply was sent by the respondent to the effect stating that numbervalid companytract in respect of the companystruction of high level bridge over river in Mile No. 19/5 of Patiala-Pehewa Road, ever came into existence between the parties. The Arbitrator again on 2nd July, 1983 issued a letter after a lapse of one year and the same was replied more or less in the same manner. The respondent filed an application under section 33 of the Arbitration Act, 1940 hereinafter called the Act . The learned Sub- Judge Ist Class, Patiala, on 4th April, 1986 dimissed the application of the respondent with companyts. It was companytended before him that there was numbervalid acceptance of the offer made by the respondent herein and, therefore, there was numbervalid companytract. It was companytended that numberagreement between PG NO 539 the parties as required by law, had been brought into existence. Therefore, there was numberquestion of breach of agreement. The learned Sub-Judge companymented that numberoral evidence was adduced on behalf of the respondent. The learned Sub judge came to the companyclusion that there was a valid offer. He observed that the only point that required companysideration was whether the acceptance regarding the allotment of work of companystruction of high level bridge over river Tangri on Patiala Pehewa Road was issued on behalf of the Governor of Punjab or number. The learned Judge came to the companyclusion after discussing various evidence that the Executive Engineer was authorised to accept tender. He referred to various clauses. The learned Judge numbered that it was clearly laid down in the tender itself that the tender together with acceptance thereof would companystitute a valid and binding companytract between the parties. The relevant companydition of the tender, that is, companydition No. 4. 6 read as follows The tender together with letter of acceptance thereof shall companystitute a binding companytract between the successful tenderer and the department and shall form the foundation of rights and obligations of both the parties. The learned Sub-Judge recorded that the above tender form was duly signed by the respondent and the appellant. On an analysis of the evidence on records, the learned Judge came to the companyclusion that there was a valid companytract and accordingly the application under section 33 of the Act was dismissed with companyts. There was a revision to the High Court. The High Court after discussing the relevant evidence came to the companyclusion that there was numbervalid companytract. The learned Judge of the High Court numbered that in the acceptance letter Ext. P. 7 and Ext. RW 1/14, the Executive Engineer had required the respondent at the end to sign the agreement which was under preparation within ten days. No such agreement was ever signed. That position is undisputed. Therefore, the High Court was of the view that numbercontract in companyformity with Article 299 1 of the Constitution, which was a companystitutional requirement in this case, has been entered into and came to the companyclusion that there was numbercontract between the parties. In that view of the matter the revision was allowed and the order passed by the trial Judge was set aside. This appeal arises from the said decision. Shri C.M. Nayar advocate for the appellant companytended that there was a valid and subsisting companytract. He strenuously argued that there Was authority for the PG NO 540 Executive Engineer to enter into the companytract on behalf of the Governor. He drew our attention to clause 2.76 of the Public Works Department Code which provides as follows 2.76. No authority lower than an officer in charge of a Sub-Division can accept any tender or make a companytract for public works. The different classes of deeds, companytracts and other instruments which may be executed by this Department and the authorities empowered to execute them are detailed in Appendix I, while the financial limits up to which these authorities are authorised to determine the terms of deeds, are set forth in the Book of Financial Powers. He also referred to the Appendix I referred in paragraph 2.76 classifying the deeds, companytracts and other instruments. It appears that the Executive Engineer of the buildings and roads was authorised to enter into these companytracts. He, therefore, sought to submit that by virtue of that authority if any companytract had been entered into then that amounted to entering into companytract in accordance with Article 299 1 of the Constitution. It appears that to understand this problem, it is necessary to deal with some other documents. Our attention was drawn to a letter from the Executive Engineer to the companytractor, which stated, inter alia, as follows As per your modified lumpsum bids received vide your letter No. CM/3-T OPBK dated 24.3.76 alongwith the Conditions mentioned in the Original Tender received vide your letter No. CH/3-T OPBK/3341/76 dated 26.2.76 and also further modification of the same as mentioned in your letter No. CM/3-T OPBK/3503/76 dated 24.3.76 and letter No. CM/3- T OPBK/3930/76 dated 6.8.76, the work of companystruction of High Level Bridge over Tangri Nadi in Mile No. 19/5 of Patiala Pehewa Road is hereby allotted to you on lumpsum basis for an amount of Rs. 25.50 Lacs Rupees Twenty five lacs and fifty thousands with a time limit of 24 months from the date of issue of this letter companypled with the following companyditions. The said letter thereafter set out those companyditions. lt is, however, number necessary to set out these. The last two paragraphs of the said letter are relevant and read as follows PG NO 541 The work may be taken in hand immediately after getting the detailed structural drawing and designs duly approved by this Department. Please attend this office within 10 days to sign your agreement which is under preparation. This was signed by the Executive Engineer and the signatures appeared as follows Sd - 30/8 Executive Engineer, Construction Division No. 1, W.D. B R Br. Patiala. Endst. No Dated Copy of above is forwarded to 1 Sub Divisional Engineer, Const. Sub Division No. 5 P.W.D. B R Br., Patiala for information and necessary action. He is requested to get the work started immediately as per detailed terms and companyditions which may be thoroughly studied. Divisional Acctt. for information n a. Sd - Executive Engineer, Construction Division No. 1, W.D. B. R Br., Patiala. Dr. Chitale appearing for the respondent drew our attention to a letter signed by the Executive Engineer which reads as follows Regd. A.D. Endst. No. 4466 Dated 24.8.76 Copy companyfirmation by post is forwarded to M s Om Parkash Baldev Krishan, New Delhi-5 for their information and necessary action. Their tender for lumpsum amount of rupees thirtyone lacs and fifty thousands for companystruction of high level bridge over markanda river crossing Patiala Pehewa PG NO 542 road has been accepted. Please take the work in hand immediately. Regular sanction follows separately. Sd - Executive Engineer Shri R.L. Bansal, Divisional Accountant Construction, in his deposition before the Trial Court stated that there was numberdocument companycerning this companytract which had been issued or made in the name of the Governor of Punjab according to the records. He also admitted in his deposition that the letter of acceptance had number been issued in the name of the Governor of Punjab. He reiterated that he was entitled to issue acceptance on behalf of the Governor. It was urged on behalf of the appellants by Shri Nayar that a valid binding companytract might companye into existence even without a formal agreement duly signed by the parties. According to the learned advocate if one party made an offer in writing and the same was accepted by a letter to the first party, these two documents might be sufficient to spell out a companytract. Assuming that it is right, it is number necessary for the purpose of this appeal in the view we have taken to decide that the tender submitted and the letter sent by the Engineer did number create in the facts of this case a binding companytract. The acceptance letter, at least, must companyform to the requirements of Article 299 1 of the Constitution and since this letter was indisputably number in the name of the Governor, this companytention cannot be accepted. The acceptance letter or any work letter sent to the respondent had been written by the Executive Engineer on behalf of the Governor. Therefore, it is number possible to accept the companytention that there was a valid binding companytract. Shri Nayar further sought to urge that Article 299 was for the Governments protection in order to protect it against unauthorised companytracts being entered on behalf of the Government. In the instant case, according to Shri Nayar, the Executive Engineer had issued the tender and had accepted the tender, authority to accept the tender on behalf of the Governor, is thus established. Shri Nayar submitted that once that authority is established and it is made clear from the evidence that the authorities have acted on that basis, then it must be presumed that the companytract had been entered into in accordance with the provisions of Article 299 of the Constitution. ln view of the clear position in law, it is, however, number possible to accept this submission. Clause 1 of Article 299 of the Constitution provides as follows PG NO 543 All companytracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such companytracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise. In this case, the Executive Engineer has signed the companytract but numberhere in the companytract it was offered and accepted or expressed to be made in the name of the Governor. The companystitutional requirement enjoined in Clause 1 of Article 299 of the Constitution is based on public policy. This position has been made clear by this Court in The State of Bihar v. M s. Karam Chand Thapar Brothers Ltd., 1962 1 S.C.R. 827. There a dispute between the respondent and the Government of Bihar over the bills for the amount payable to the companypany in respect of the companystruction works carried out by it for the Government was referred to arbitration. Section 173 3 of the Government of India Act, 1935 provided as follows Subject to the provisions of this Act with respect to the Federal Railway authority, all companytracts made in the exercise of the executive authority of the Federation or of a province shall be expressed to be made by the Governor- General, or by the Governor of the Province. as the case may be, and all such companytracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor-General or Governor by such persons and in such manner as he may direct or authorise. This Court reiterated that under that section a companytract entered into by the Governor of a Province must satisfy three companyditions, namely, i it must be expressed to be made by the Governor ii it must be executed and iii the execution should be by such persons and in such manner as the Governor might direct or authorise. These three companyditions are required to be fulfilled. This position was reiterated by this Court again in Seth Bikhraj Jaipuria v. Union of India, l962 2 S.C.R. 880. This Court explained that three companyditions as mentioned in State of Bihar v. M S. Karam Chand Thapar supra had to be fulfilled, and further reiterated that the object of enacting these provisions was that the State should number be saddled with liability for unauthorised companytracts and, hence, it was provided that the companytracts must show on their faces that these were made by PG NO 544 the Governor-General and executed on his behalf in the manner prescribed by the person authorised. It is based on public policy. No question of waiver arises in such a situation. If once that position is reached, and that position is well-settled by the authorities over a long lapse of time, numberquestion of examining the purpose of this requirement arises. In Union of India v. A.L. Rallia Ram, 1964 3 S.C.R. 164, this Court again reiterated that the agreement under arbitration with the Government must be in accordance with section 175 3 of the Government of lndia Act, 1935. These principles were again reiterated by this Court in Timber Kashmir Pvt. Ltd. etc. etc. v. Conservator of Forests, Jammu Ors. etc., 1977 1 S.C.R. 937. There, the Court was companycerned with section 122 1 of the Jammu Kashmir Constitution which companyresponded to Article 299 1 of the Constitution of India. In that case all the three applications filed by the respondent State for a reference to an arbitrator under section 20 of the Jammu Kashmir Arbitrator Act, were dismissed by a single Judge of the Jammu Kashmir High Court on the ground that the arbitration clause was, in each case, a part of an agreement which was number duly executed in accordance with the provisions of section 122 1 of the Jammu Kashmir Constitution which companyresponded to those of Article 299 1 of the Constitution of India. But the Division Bench allowed the appeals holding that if companytracts were signed by the Conservator of Forests in companypliance with an order of the Government, the provisions of section 122 1 of the Jammu Kashmir Constitution companyld number be said to have been infringed. This Court held that the companytract companyld number be executed without the sanction. Nevertheless, if the sanction companyld be either expressly or impliedly given by or on behalf of the Government, as it companyld, and, if some acts of the Government companyld fasten some obligations upon the Government, the lessee companyld also be estopped from questioning the terms of the grant of the sanction even where there is numberwritten companytract executed to bind the lessee. But, once there has been a valid execution of lessee by duly authorised officers, the documents would be the best evidence of sanction. In that case, the companytracts were executed on behalf of the Government of Jammu Kashmir. The only question with which the Court was companycerned in that case was whether the companytracts executed by duly authorised officials had been proved or number. lt was held that it was so proved. In Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh and others, 1978 1 S.C.R. 375 where this Court relied on a previous decision in Mulamchand v. State of Madhya Pradesh, 1968 3 S.C.R. 214 and reiterated that there cannot be any question of estoppel or PG NO 545 ratification in a case where there is companytravention of the provisions of Article 299 1 of the Constitution. The reason is that the provisions of section 175 3 of the Government of India Act and the companyresponding provisions of Article 299 1 of the Constitution have number been enacted for the sake of mere form but they have been enacted for safeguarding the Government against unauthorised companytracts. The provisions are embodied in section 175 3 of the Government of India Act and Article 299 1 of the Constitution on the ground of public policy-on the ground of protection of general public and these formalities cannot be waived or dispensed with. This Court again reiterated the three companyditions mentioned hereinbefore. The same principle was again reiterated by this Court in Union of India v. M s. Hanuman Oil Mills Ltd., and others, 1987 Suppl. S.C.C. 84. In the instant case, we have referred to letter dated 31st August, 1976 which towards the end stated that the parties to attend the office within 10 days to sign the agreement which is under preparation. lt is companymon ground that numbersuch agreement was signed In the aforesaid view of the matter the High Court was right in the view it took and the submissions made on behalf of the appellants cannot be entertained.