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###Human: What does a rectangular traffic sign with a blue border indicate? ###Assistant: A rectangular traffic sign with a blue border often indicates information or guidance.

###Human: What is the fine for using a horn in a no-horn zone? ###Assistant: Using a horn in a no-horn zone can result in fines.

###Human: What is the speed limit for heavy goods vehicles on expressways? ###Assistant: The speed limit for heavy goods vehicles on expressways can vary but is often around 60-70 km/h.

###Human: What is the penalty for driving without a valid driving license in India? ###Assistant: The penalty for driving without a valid driving license in India can vary but often includes fines and legal action.

###Human: When should you dim your vehicle's headlights when approaching another vehicle? ###Assistant: You should dim your vehicle's headlights when approaching another vehicle to avoid blinding the driver.

###Human: What is the fine for not using a rearview mirror? ###Assistant: The fine for not using a rearview mirror can vary but often includes fines and legal action.

###Human: What is the legal age for riding as a pillion passenger on a motorcycle in India? ###Assistant: The legal age for riding as a pillion passenger on a motorcycle in India is typically 12 years.

###Human: What should you do when you encounter a level crossing with a railway gate closed? ###Assistant: When you encounter a level crossing with a railway gate closed, you should stop and wait for the gate to open.

###Human: What is the speed limit for autorickshaws in India? ###Assistant: The speed limit for autorickshaws in India varies but is often around 40-50 km/h.

###Human: What is the penalty for not wearing a seatbelt in the rear seat of a car? ###Assistant: The penalty for not wearing a seatbelt in the rear seat of a car can vary but often includes fines.

###Human: What does a triangular traffic sign with a red border indicate? ###Assistant: A triangular traffic sign with a red border often indicates a warning or caution.

###Human: What is the maximum speed limit for a school bus in India? ###Assistant: The maximum speed limit for a school bus in India can vary but is often around 40-50 km/h.

###Human: What is the fine for not obeying traffic signals from a traffic police officer? ###Assistant: The fine for not obeying traffic signals from a traffic police officer can vary but often includes fines and legal action.

###Human: What should you do when you see cattle or animals on the road? ###Assistant: When you see cattle or animals on the road, you should slow down and proceed with caution.

###Human: What is the speed limit for heavy vehicles on ghat roads? ###Assistant: The speed limit for heavy vehicles on ghat roads in India varies but is often lower than on regular roads.

###Human: What is the penalty for driving without a valid fitness certificate for a commercial vehicle? ###Assistant: The penalty for driving without a valid fitness certificate for a commercial vehicle can vary but often includes fines and legal action.

###Human: What is the speed limit for motorcycles on city roads in India? ###Assistant: The speed limit for motorcycles on city roads in India varies but is often around 40-50 km/h.

###Human: What is the legal age for obtaining a commercial driving license in India? ###Assistant: The legal age for obtaining a commercial driving license in India is typically 18 years.

###Human: What does a rectangular traffic sign with a white border indicate? ###Assistant: A rectangular traffic sign with a white border often indicates regulatory instructions.

###Human: What should you do when you see a disabled vehicle on the side of the road? ###Assistant: When you see a disabled vehicle on the side of the road, you should slow down and pass carefully.

###Human: What is the speed limit for goods vehicles within city limits in India? ###Assistant: The speed limit for goods vehicles within city limits in India varies but is often around 40-50 km/h.

###Human: What is the fine for not wearing a helmet when riding a two-wheeler? ###Assistant: The fine for not wearing a helmet when riding a two-wheeler can vary but often includes fines and legal action.

###Human: What is the penalty for not stopping for a school bus with flashing amber lights? ###Assistant: The penalty for not stopping for a school bus with flashing amber lights can vary but often includes fines.

###Human: What does a green arrow traffic signal indicate? ###Assistant: A green arrow traffic signal indicates that you can proceed in the direction indicated by the arrow.

###Human: What is the speed limit for an agricultural tractor on the road? ###Assistant: The speed limit for an agricultural tractor on the road in India varies but is often around 20-30 km/h.

###Human: What is the penalty for driving with an expired vehicle registration? ###Assistant: The penalty for driving with an expired vehicle registration can vary but often includes fines and legal action.

###Human: What is the legal age for obtaining a commercial driving license in India? ###Assistant: The legal age for obtaining a commercial driving license in India is typically 18 years.

###Human: What should you do when you approach a speed breaker on the road? ###Assistant: When you approach a speed breaker on the road, you should slow down to reduce the impact.

###Human: What is the speed limit for cars on expressways in India? ###Assistant: The speed limit for cars on expressways in India varies but is often around 80-100 km/h.

###Human: What is the fine for overloading a commercial vehicle? ###Assistant: The fine for overloading a commercial vehicle can vary but often includes fines and legal action.

###Human: What is the penalty for using a vehicle with tinted windows beyond the permissible limit? ###Assistant: The penalty for using a vehicle with tinted windows beyond the permissible limit can vary but often includes fines and removal of the tint.

###Human: What does a diamond-shaped traffic sign indicate? ###Assistant: A diamond-shaped traffic sign often indicates a warning or caution.

###Human: What is the speed limit for a public transport bus in India? ###Assistant: The speed limit for a public transport bus in India can vary but is often around 40-50 km/h.

###Human: What is the fine for parking in a handicapped parking space without a valid permit? ###Assistant: The fine for parking in a handicapped parking space without a valid permit can vary but often includes fines.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3838 of 1988. From the Judgment and Order dated 22.6.1987 of the Tamil Nadu High Court in W.A. No. 555 of 1984. T.S. Tulsi, Additional Solicitor General, B.K. Prasad, K. Srivastava, P. Parmeshwaran for the Appellants. T.M. Sampath and K.V. Sreekumar for the Respondents. The Judgment of the Court was delivered by VERMA, J. This matter brings to the fore once again the ineptitude with which litigation is companyducted quite often on behalf of the Government of India and State Governments even when important issues having lasting and wide repercussions are involved. The point in this case relates to the validity of a policy of the railway administration and is likely to affect the staff pattern in several units. Inspite of this fact, to support validity of the impugned policy the required materials were number produced in the High Court and to overcome the adverse decision several opportunities given by us to produce the entire relevant record were number availed. The learned Additional Solicitor General informed us after several adjournments that better performance is number possible. We, therefore, companycluded the hearing and proceed to decide on the available materials. It is indeed fortunate for the appellants that our companyclusion is in their favour. The railway administration with its companyntrywide network can help to improve this situation by a genuine effort in this direction and thereby companytribute also to saving of needless expense and time. We, therefore, direct that a companyy of this judgment be sent to the Chairman, Railway Board, Ministry of Railways, Government of India. In view of the situation indicated above, we are mentioning only those facts which are necessary for deciding this matter and which are accepted by both the sides. It is number unlikely that there may be more material in the available records of the appellants to support our companyclusion. Briefly stated the companytroversy in this matter relates only to the employees working in the Inspection Wing of the Production Control Organization for short P.C.O. of the Integral Coach Factory, Perambur. The grievance of these employees in the Inspection Wing is to the implementation of the circular dated 8.6.1982 of the General Managers Office Personnel Branch Fur. , Madras of the Integral Coach Factory issued in supersession of the earlier circulars on the subject with the Railway Boards approval to treat the Progress Wing alone of the P.C.O. as a separate cadre. The grievance of the employees in the Inspection Wing is that there is numberreasonable basis for this classification of the Progress Wing of the P.C.O. separately denying the same benefit to those in the Inspection Wing. In short, the employees of the Inspection Wing of the P.C.O. also want to be in a separate cadre like those in the Progress Wing and absorbed perma nently in the P.C.O. without the risk of being reverted to the shop floor from which they had been taken and where their lien companytinues. A brief history of the Production Control Organization in the Integral Coach Factory, Perambur, may number be given. The P.C.O. of the Integral Coach Factory was companystituted to ensure quality companytrol of the production in the factory. It companyprises of four wings which include the Progress and Inspection Wings. It appears that the policy for manning the different wings of the P.C.O. remained nebulous for quite long and several changes therein were made from time to time to accommodate the staffs point of view. To begin with, persons from different trades in the shop floor were taken on deputation for the different wings of the P.C.O. For the Progress Wing of the P.C.O., there was also some direct recruitment, but the same was stopped after some time probably in the year 1958 and it was decided that the posts in the Progress Wing be filled by taking persons on deputation from the shop floor. On 22.4.1963, the Railway Board laid down uniform policy for the P.C.Os. in all units of the Indian Railways according to which all the posts in the C.Os. were made ex-cadre and every employee posted in the C.O. was to be from a trade in shop floor. The employees transferred from the shop floor to the P.C.O. were to retain their lien in the shop floor and deemed to be on temporary transfer. This gave rise to some practical difficulty and the permanently absorbed staff in the P.C.O. were given option to revert to the shop floor. The staff directly recruited in the P.C.O. were to be allotted a trade and given the option for getting absorbed in the shop floor On 13.10.1964, a modification was made which is companytained in the G.M. P s letter No. PB S M/6/ATC which refers to the Railway Boards letter No. E NG 59SR 6-22 dated 22.4. 1963. This was the first stage, as described by the learned Additional Solicitor General, for the employees in the P.C.O. of the Integral Coach Factory, Perambur. At the next stage. this policy was further modified for the Inspection Wing by a circular dated 13.8.1965 of the Office of the GM PB Shell of the Integral Coach Factory. This was a half-way measure implemented straightaway in the Inspection Wing, but companyld number be implemented in the other three wings, namely, Progress, Planning and Time Study, because of certain practical difficulties therein. According to this modification, the Inspection Wing was to form a separate ex-cadre unit and the employees in the Inspection Wing were given proforma position in the cadre posts in their trade and companyld be reverted to their parent cadre in the shop floor in the position which they occupied in the shop floor. This again met with difficulty in implementation giving rise to circular dated 29.9.1967 of the Office of the General Manager Personnel Branch Staff of the Integral Coach Factory. Option was given to the staff in the Progress, Planning and Time Study Wings of the P.C.O. to get absorbed and interpolated in the shop floor leaving the Inspection Wing separate. This circular dated 29.9. 1967 was struck down by the Madras High CoUrt vide its order dated 22.8. 1975 in a petition filed by employees of the shop floor on the ground that the General Manager of the Integral Coach Factory had numberpower to act inconsistently with the Railway Boards circular and the remedy is to modify the Railway Boards circular dated 22.4.1963. Accordingly, the procedure laid down in the order dated 29.9. 1967 was cancelled and all posts in the P.C.O. were declared excadre by a circular dated 28.8. 1977 of the General Managers Office Personnel Branch Fur. of the Integral Coach Factory. A modification m the earlier proposal was made by this order. All employees were to be allotted a trade and given option either to go to the shop floor or remain permanently in the P.C.O. However, this too companyld number be implemented on account of the protest of the staff and the unions representing them. At the next stage, a proposal was made by the Integral CoaCh Factory to the Railway Board which is companytained in the letter dated 1.3. 1982 from the Chief Personnel Officer, Integral Coach Factory to the Joint director, Establishment, Railway Board. This was in pursuance to the suggestion of the staff itself that the Progress Wing alone be treated as separate cadre in the P.C.O. and number the remaining wings. Reasons in support of the proposal were also given therein. The Railway Board companyveyed its approval to this proposal in its letter No. E NG 1-81 PM 1/259 CA dated 20.3. 1982. This led to the issuance of the order dated 8.6.1982 by General Manager, Integral Coach Factory, stating that in accordance with the Railway Boards approval, the Progress Wing alone of the C.O. would be a separate cadre and number the remaining wings. As a result of this decision, the Inspection Wing is number treated as a separate cadre unlike the Progress Wing. This is the basis of the grievance of the employees of the Inspection Wing which led to the filing of the writ petition giving rise to this appeal. Writ Petition No. 4468 of 1982 filed in the Madras High Court by the respondents was allowed by the learned Single Judge on 7.4.1984. Thereafter, another step was taken by the railway administration which may be mentioned. The Integral Coach Factory issued a circular on 21.9.1984 companyveying Railway Boards decision companytained in the letter dated 13.9.1984 regarding the staffing pattern of the P.C.Os. in the workshops including the Integral Coach Factory. According to this decision, all posts in the P.C.O. except the Progress Wing companytinued to be ex-cadre posts and the tenure of these posts was directed to be strictly adhered to. The existing position regarding en-cadering of the posts in the C.O. in all wings of Southern Railway and Progress Wing of Integral Coach Factory was allowed to be companytinued. In short, it was a reversion to the initial stage companytained in the order dated 22.4.1963 of the Railway Board except for the Progress Wing. The writ appeal of the railway administration was thereafter dismissed by the High Court on 22.6.1987. The further facts are number material for deciding the point in companytroversy. In short, the employees of the Inspection Wing which include the respondents, companytend that they are entitled to be treated similarly as the employees of the Progress Wing, whose companytinuance in the P.C.O. without the risk of reversion to the shop floor is assured by the adoption of this policy. This companytention of the respondents has been accepted by the High Court. The acceptance of the respondents claim results in striking down the Railways policy to this extent of number treating the Inspection Wing also as a separate cadre like the Progress Wing. It also affects the prospects of those in the shop floor who are denied the chance of being taken in the Inspection Wing of the P.C.O. because of the companytinuance permanently of those already there retaining their lien in the shop floor. It is admitted that the service companyditions in the P.C.O. are better than those of the companyresponding posts in the shop floor. This is the reason for those in the P.C.O. number wanting to revert to the shop floor and the keenness of persons from the shop floor to go to the P.C.O. Some employees working in the shop floor have preferred S.L.P. Civil No. 9774 of 1990 arising out of a companynected matter and have supported the stand of the railway administration taken in Civil Appeal No. 3838 of 1988. It is companymon ground before us that the Inspection Wing of the P.C.O. performs the function of inspecting the quality of the products of the Integral Coach Factory and thereby ensures quality companytrol of the products. The Progress, Planning and Time Study Wings of the P.C.O. are involved in the manufacture of these products and companye at the stage relating to manufacture of the products. There is thus an intelligible differentia between the function of the Inspection Wing on one side and the remaining wings of the P.C.O. on the other. The background indicated earlier leading to the decision by the Railway Board that the Progress Wing alone would be treated as a permanent cadre in the Integral Coach Factory and number the others, was reached on the basis of experience over a long period and was in companysonance with the opinion of the Staff Council representing the views of the staff of the Integral Coach Factory. It appears that companytinuity in Progress Wing and rotation in the Inspection Wing was companysidered desirable for better efficiency. The Railway Board being companypetent to effect necessary changes in the staff pattern of the various units under its companytrol for the purpose of streamlining the Organisation and improving their efficiency, took this decision for this purpose which is companysistent with the view of the staff Council representing the interest of the entire staff in the P.C.O. It does appear that the railway administration did want at one time to treat all units in the P.C.O. as separate permanent cadres but practical difficulty in the implementation of that policy and opposition by the staff impelled it to give up the same. Even here we find that while those already in the Inspection Wing want to remain there permanently, the others who are in the shop floor and would be denied the prospect of being taken in the Inspection Wing of the P.C.O. if the respondents companytention is upheld, are opposed to this view. The decision of the Railway Board, therefore, takes into account all points of view and makes an attempt to reconcile the companyflicting interests while ensuring improvement in the efficiency of the unit. If as a matter of policy the Railway Board approved the proposal made by the management of the Integral Coach Factory to treat the Progress Wing alone of the P.C.O. as a separate cadre and number so the remaining wings including the Inspection Wing, the same cannot be faulted unless it is held to be discriminatory or arbitrary. In view of the nature of functions performed by the four different wings of the P.C.O., we are unable to agree with the High Courts view that the Inspection Wing and the Progress Wing of the P.C.O. must be classified together and treated as separate cadres. It is significant that even at some of the earlier stages, Inspection Wing was treated differently as a matter of policy. The work of the Inspection Wing, as indicated earlier on the basis of undisputed facts before us, is to inspect the quality of the manufactured products to ensure quality companytrol, while the Progress Wing is companycerned with the stage prior to manufacture of the products. For the efficiency of the Inspection Wing which performs the duty of exercising vigilance over the production for the sake of ensuring quality of the products, it is number unreasonable to think that a periodic rotation of its personnel would be companyducive to efficient functioning of the Inspection Wing. The permanency of personnel in the Inspection Wing can promote lethargy in them and may also tend to create vested interests. The possibility of change therein makes the existing personnel more vigilant to avoid any lapse which companyld be discovered by the replacement. The highest possible standards of vigilance by them is achieved by the possibility of reversion to the shop floor against their will if the required degree of efficiency and standard in performance of the duty is number maintained. The work of the Inspection Wing being at the end point with numberfurther scrutiny thereafter, rotation of its personnel is likely to promote the efficiency of the unit. This factor is sufficient to provide a reasonable basis for classification of the Inspection Wing differently from the Progress Wing and there is numberground to companyplain of discrimination, if according to the Railway Boards policy, the Inspection Wing is number treated as a separate cadre like the Progress Wing. The power of the railway administration to formulate such a policy provided it is number discriminatory being rightly number challenged, this companyclusion alone is sufficient to uphold the action of the railway administration. The companytrary view taken by the High Court cannot, therefore, be sustained. We find that the companypetence of the Railway Board to change the staff pattern of the P.C.O. in the Kharagpur Railway Workshop of South Eastern Railway, was challenged before the Central Administrative Tribunal. The decision there was companytained in a Memorandum of 1979 declaring that the posts in the P.C.O. in the Kharagpur Railway Workshop would be treated as ex-cadre differently from the policy in Integral Coach Factory. The Tribunal rejected the challenge based on discrimination between two units and a special leave petition filed in this Court was dismissed. This Court in S.K. Chakraborthy and Ors. v. Union of India Ors., 1988 Supp. 1 S.C.R. 425 upheld the authority of the Railway Board to adopt such a policy to bring about the necessary changes in the staff pattern for improving the efficiency of the administration of units under its companytrol and for the purpose of streamlining the Organisation provided there was numberdiscrimination. Consequently, the appeal is allowed and the impugned judgment of the High Court is set aside resulting in the dismissal of the Writ Petition filed in the High Court. No companyts. A companyy of this judgment be sent to the Chairman, Railway Board as directed.

C. Shah, C.J. By the deed dated 4th January, 1961 one Harnam Singh made a gift of agriculture land measuring 76 acres 3 bigh as in favour of the appellant in appeal. Wazir Singh, respondent to this appeal claming that he was adopted on July 11, 1947 by Harnam Singh according to Hindu rites and ceremonies challenged the gift of the land which he asserted belonged to the Hindu Joint family of Harnam Singh and himself. The suit filed by Wazir Singh was dismissed by the Trial Court. The Court held that Wazir Singh was appointed as heir under the customary law of the Punjab and that he was number adopted according to Hindu riles and ceremonies on that account Wazir Singh was number companypetent to challenge the alienation of the gift by Harnam Singh. On appeal, the District Court upheld the claim of Wazir Singh that he was adopted by Harnam Singh according to the Hindu rites and ceremonies and the property which was gifted was part of the companyarcenary property and on that account the gift was void. The High Court of Punjab companyfirmed the decree passed by the District Court. With certificate granted by the High Court, this appeal has been preferred by the appellant. Two companytentions are raised in support of appeal In reaching his companyclusion that the adoption of Wazir Singh was according to Hindu rites and ceremonies, the District Judge misread documentary evidence and ignored the pleadings of the party. That in any case by virtue of Section 30 of the Hindu Succession Act 1956 it was number open to Wazir Singh to challenge the gift made by his adoptive father Harnam Singh. The deed of adoption which is executed by Harnam Singh in 1947 states that After my death it is necessary that I should have a son to perform any ritual ceremonies The name of a sonless person vanishes from the mortal world. I have brought up Wazir son of Mangal, a minor aged 16 years, as a son since his childhood, for the last ten years. Wazirs marriage was also arranged by me and Wazir aforesaid is also looking after me as natural son. I have adopted Wazir aforesaid, minor son of Mangal, as my son in the presence of the Panchayat, after performing the religious ceremonies Wazir will be the owner of my property of every kind as my natural son. The recitals in the deed of adoption companyroborate the case of Wazir Singh that he was adopted according to Hindu rites and ceremonies in the presence of the Panchayat, and that he was treated as an adopted son. The recitals in the deed are supported by the witnesses examined in the Court of First Insurance on behalf of Wazir Singh. Mr. Bishan Narain companytended that the District Judge misread the written statement filed by the appellant in the Court of first instance and assumed that numberplea was raised that the adoption was merely a customary adoption. Granting that a companytention was raised that Harnam Singh did number adopt Wazir Singh according to the Hindu rites and ceremonies, the companyclusion of the District Judge on appreciation of evidence that the ceremonies of adoption according to Hindu rites were performed, was binding upon the High Court in second appeal. It is companyceded, and in our judgment rightly, that a Hindu governed by the customary law in the Punjab is number disentitled to make a formal adoption according to Hindu rites and ceremonies. Harnam Singh companyld make a customary adoption, he companyld also make a formal adoption according to Hindu rites and ceremonies. In the present case, the District Judge has found that there was a formal adoption of Wazir Singh according to Hindu riles and ceremonies. That finding was binding upon the High Court sitting in Second appeal. The first companytention must, therefore, fail. Section 30 of the Hindu Succession Act provides Any Hindu may dispose of by will or by will or other testamentary any property, which is capable of being so disposed of by him, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. Explanation The interest of a male Hindu in a Mitakshara companyarcenary property or the interest of a member of a tarwad, tavashi, illom, kutumba or kavaru in the property of the tarwad, tavashi, illom, kutumba or kavaru shall, numberwithstanding anything companytained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this Sub-section. Mr. Bishan Narain companytended that Section 30 applied only to disposition by will or other testamentary instruments but also to instruments inter vivos. On the plain terms of Section 30 it is impossible to read Section 30 as applying to disposition inter vivos. Mr. Bishan Narain relied upon Section 13 of the Hindu Adoptions and Maintenance Act of 1964 which reads Subject to any agreement to the companytrary, an adoption does number deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. But by virtue of his adoption in 1947, Wazir Singh acquired the status of a companyarcener. A gift of companyarcener property by a member is void. There is numberhing in Section 13 of the Hindu Adoptions and Maintenance Act 1956 which detracts from that rule.

BRIJESH KUMAR, J. This appeal is preferred against the judgment and order dated 17.5.2002 passed by the Madhya Pradesh High Court dismissing the appeal of the appellants against their companyviction and sentences of imprisonment for life under Section 302/149 as well as six months rigorous imprisonment under Section 323/149 of the Indian Penal Code. In all seven persons have been companyvicted by the Sessions Judge out of which Shankariya and Malkhe died during the pendency of the appeal in the High Court. The remaining five accused persons who have been companyvicted are Munna, Shridhar, Motilal, Sarman and Gopal out of these persons Shridhar and Motilal are appellants before us in this appeal. The prosecution case is that on 12.3.1983 at about 7.00 p.m. deceased Hakimsingh and PW-1 Rajendrasingh on way to their field passed through the house of Shankariya who is said to have accosted Hakimsingh asking him as to why he had been visiting the wife of his brother Ramcharan. Hakimsingh protested, upon which Shankariya and Malkhe with lathis, accused Sarman assaulted with farsa. Gopal and Motilal are said to have given lathi blows on the head of Hakimsingh. PW 1 Rajendrasingh tried to intervene at which he was also assaulted by Shankariya and Gopal. The alarm of Rajendrasingh attracted PW 4 Mahaveersingh, PW3 Sagarsingh, PW5 Raghurajsingh and PW 6 Dildarsingh to the spot. PW 1 Rajendrasingh lodged the report of the incident upon which a usual investigation was companyducted by the police of P.S.Veerpur. The weapons of the assault namely, lathi and farsa etc. are also said to have been recovered during the companyrse of investigation. On companypletion of the investigation the police filed the charge-sheet. Rajendrasingh and Hakimsingh were sent for medical examination. PW-8 Dr.K.K.Singh found two injuries on the person on Rajendrasingh one of which was a lacerated wound on the forehead and the other a bruise on the left hand. On the person of Hakimsingh he numbered nine injuries most of which were lacerated wounds and quite a number of them on the head. Hakimsingh however, later died on 21.3.1983 in J.A.Group of Hospitals, Gwalior. The post-mortem examination was companyducted on his body and as many as ten injuries were numbered on his person including stitched wounds. The injuries were on the face, head and other parts of the body. The prosecution, to prove its case, has examined PW 1- Rajendrasingh, PW 3- Sagarsingh, PW 4 Mahaveersingh and PW 5 Raghurajsingh as eye-witnesses. PW 6 Dildarsingh is also one of those who is said to have rushed to the spot at the time of the incident. PW 8 Dr.K.K.Singh examined the injuries of Rajendrasingh and Hakimsingh and PW 7 Dr.V.K.Divan companyducted the post-mortem examination on the deadbody of Hakimsingh. The other former witnesses and the investigating officers were also examined. The defence of the accused persons was that they have been falsely implicated in the case. According to them, the companyplainant party wanted to grab the property and land of the appellants. It also appeared that a cross report was lodged by late Shankariya, accused at the same police station. According to them, late Shankariya, accused Munna and Sarman had received injuries. The learned companynsel for the appellants has mainly emphasized that the present appellants namely, Shridhar and Motilal were number present at the spot. He further submitted that the prosecution case as initially taken up has number been pursued as to how the incident occurred and the story of Hakimsingh having illicit relations with the wife of the brother of Shankariya has been given up at the stage of the evidence. We feel that it would number be necessary to go into that aspect of the matter in view of the fact that a fight had taken place at the time and date as indicated by the prosecution is number in dispute. A cross report has also been lodged and it was the case of the accused persons that Munna and Sarman had received injuries. It is true at the evidence stage the prosecution story was slightly changed as to how the dispute had started. As it was stated at the end that a quarrel took place as cattle of late Shankariya had entered into their fields. But as observed above in the facts and circumstances of this case the question as to how the fight started numbermore remains important since admittedly the incident occurred resulting in injuries to Hakimsingh and Rajendrasingh as a result of which later on Hakimsingh died. Cause of fight therefore, is number a point to be much companycentrated upon. The other relevant question which may arise for companysideration is as to which of the party was aggressor and further if there was any right of private defence available to the accused persons. The Trial Court as well as the High Court has companysidered this aspect of the matter and has companye to the companyclusion that it would number be possible to hold that Hakimsingh and Rajendrasingh would be aggressors or they picked up a fight empty handed. As a matter of fact numbersuch arguments have been advanced on behalf of the appellants before us to dislodge the findings arrived at by the two companyrts. The main stress on behalf of the appellants has been that they were number present at the spot. Arguments have mainly been advanced only in that direction. It is submitted that so far the appellant Shridhar is companycerned he has number been assigned any role of assault to Hakimsingh or the injured Rajendrasingh. One of the eye-witnesses has also number named him as an accused person at the spot at the time of the incident. It is submitted that it makes his presence doubtful. The submission in regard to Motilal is that he is said to have given a lathi blow on the neck of the deceased Hakimsingh. But there is numberblunt weapon injury on the neck of Hakimsingh. Therefore, it is submitted that his presence is also number made out at the relevant time of the incident. We have scrutinized the submissions made by the learned companynsel for the appellants and we numberice that a role has been assigned to each of the accused persons but Shridhar. It is said that Shankariya and Malkhe started assaulting Hakimsingh. The FIR also indicates the role played by different accused persons but so far accused Shridhar is companycerned numberrole has been assigned to him for assault either to Hakimsingh or to Rajendrasingh. The other accused persons, namely, Sarman who has been stated to have given farsa blow whereas Motilal and Gopal are said to have given lathi blows to Hakimsingh. It is also to be numbericed that one of the eyewitnesses has also number named Shridhar as one of the accused in his statement in the Court. This circumstance makes the presence of Shridhar doubtful more so as a member of an unlawful assembly. Otherwise there was numbergood reason as to why numberrole would have been assigned to him in the FIR or in the statements of the prosecution witnesses and one of them having number named him altogether. Learned companynsel appearing for the State has, however, drawn our attention to the fact that the lathi which is said to have been recovered from Shridhar was blood stained. The submission is this circumstance companynects very much with the incident. But a perusal of the report of the chemical examiner does number indicate that the weapons, namely, lathi etc. were stained with human blood. Therefore, numberaid can be taken from this circumstance too. Therefore, we dont companysider it prudent to infer companyclusively that Shridhar was one of the members of the unlawful assembly. A doubt has also arisen, as indicated earlier, due to the fact that one of the eye-witnesses does number name at all in his statement before the Court. So far the appellant-Motilal is companycerned his case stands on a different footing. He has been assigned a role of assault on Hakimsingh by his lathi. This has been maintained through out in the FIR as well as in the statements of all the witnesses. The learned companynsel for the appellants has vehemently urged that there is numberinjury by any blunt weapon on the neck of the deceased Hakimsingh and the role which has been assigned to Motilal is that he had given a blow on the neck. The injury report of Hakimsingh shows that he has received a number of injuries on the front and back side of the head which have also been caused by a blunt weapon. It is difficult in a criminal case to go by exactly tallying the injuries blow by blow. Quite often injuries may tally but it is equally possible that at times a blow aimed at a particular part of the body may hit the other neighbouring part of the body and number exactly the part where the blow is aimed at. It is a case where Hakimsingh was being assaulted by lathis and farsa by a number of persons which blow of which accused may land on which part of the body cannot be stated with exactitude. Not much would turn upon it. Such a discrepancy as indicated and mentioned above cannot said to be glaring or so diverse to the manner of assault that numbermally it may number be possible to explain it. The evidence on the point of assault by Motilal is companycerned, it is also described in the FIR. The FIR was lodged promptly within two hours of the incident. Therefore, we are unable to accept the submission made on behalf of the appellant-Motilal that his presence is also number established because of the fact that numberblunt weapon injury was found on the neck of the dead-body of Hakimsingh. In view of the discussion held above, we extend the benefit of doubt to Shridhar.

P. Mathur, J. This appeal, by special leave, has been preferred against the judgment and order dated 19.6.2000 of the Bombay High Court by which the Letters Patent Appeal filed by ANZ Grindlays Bank Limited hereinafter referred to as the Bank was dismissed and the order dated 29.2.2000, passed by the learned single Judge dismissing the writ petition filed by the Bank, was affirmed. The present appeal has been filed by ANZ Grindlays Bank Limited and the respondents arrayed in the appeal are 1 Union of India, 2 All India Grindlays Bank Employees Federation, and 3 All India Grindlays Bank Employees Association. During the pendency of the appeal in this Court the entire share capital of ANZ Grindlays Bank Limited has been acquired by Standard Chartered Bank Limited and companysequently an application I.A. No. 3 of 2000 has been moved to change the name of the appellant from ANZ Grindlays Bank Limited to Standard Chartered Grindlays Bank Limited, which has been allowed. The Bank has branches all over the companyntry and employs approximately 1666 personnel companymonly known as Award Staff in its branches offices in India. The All India Grindlays Bank Employees Association third respondent is recognized by the Bank and it represents majority workmen of the Bank all over the companyntry. The All India Grindlays Bank Employees Federation second respondent represents the minority workmen of the Bank. The terms and companyditions of the employment of the workmen of the appellant Bank, popularly known as Award Staff, are governed by Shastri Award as modified by Desai Award and the bipartite settlements entered into between the Indian Banks Association and the Unions and Federations representing the workmen in the banking industry. Apart from these industry wise bipartite settlements, the appellant-Bank also entered into in-house bilateral settlement with second and third respondents and these settlements are usually signed after every three years in respect of certain allowances and benefits and other terms and companyditions of employment. The third respondent the All India Grindlays Bank Employees Association for short the Association represents over 66 of the workmen of the appellant-Bank. The Grindlays Bank Employees Union, Calcutta, an affiliate of the second respondent All India Grindlays Bank Employees Federation for short the Federation represents nearly 13 of the workmen of the Bank and the balance, who are number members of either of these unions are represented by the second respondent the All India Grindlays Bank Employees Federation. The case of the appellant is that the Federation second respondent is in the habit of backing out from signing the settlement at the last minute after having agreed to the terms thereof. Since 1993 several settlements were entered into between the Bank, the Association third respondent and also Grindlays Bank Employees Union, Calcutta. However, on account of the recalcitrant attitude of the Federation second respondent , in the settlement entered into under Section 18 1 of the Industrial Disputes Act, 1947 for short the Act a clause had to be incorporated for voluntary acceptance of the terms and companyditions of such settlements by number-members of the Association third respondent with a view to extend the benefit of such settlements to such of the number-members of the Association, who are willing to accept the settlement. A strike numberice dated 14.3.1996 was issued to the management of the Bank by the Federation second respondent . Discussions were held with all the parties and finally a settlement was arrived at between the appellant-Bank and the Association third respondent , which was signed on 18.8.1996. The Federation second respondent , however, backed out and refused to sign the settlement. The Federation then informed the Conciliation Officer Central on 19.8.1996 that it had number signed the settlement and that the signing of the settlement by the Bank with the Association third respondent amounted to unfair labour practice. On 6.12.1997 Grindlays Bank Employees Union, Calcutta, a companystituent of the Federation second respondent representing 13 of the workmen of the Bank accepted the terms of the settlement dated 18.8.1996 by signing a separate settlement dated 6.12.1997. The settlement dated 18.8.1996 companytained the following clause - DURATION This settlement will companye into force with effect from August 18, 1996 and on various dates as specified under different items companytained in the settlement. The same shall be binding on the parties until December 31, 1998. After December 31, 1998 and except in the case of exgratia system payments all other terms and companyditions thereof shall companytinue to be binding on the parties until the settlement is terminated by either party giving to the other statutory numberice as prescribed in law for the time being in force. It is agreed that since the settlement shall be binding between the parties to this settlement under Section 18 1 of the Industrial Disputes Act, 1947, it will also be binding on the affiliated units of All India Grindlays Bank Employees Association and hence on their members and thus the members shall automatically be entitled to the benefits of this settlement and subject to the obligations under this settlement. However, any other workmen who is number a member of any Union affiliated to All India Grindlays Bank Employees Association shall also be bound by the terms and companyditions of this settlement and companysequently entitled to the benefits flowing out of this settlement if he she accepts this settlement by signing a receipt and the format of the settlement enclosed with this settlement, which will be made available to such employees. The benefits arising out of this settlement will be given effect to by September 10, 1996. The settlement itself companytained a format in which the receipt had to be given and the same is as under - To The Manager ANZ Grindlays Bank Limited. Sir, The terms and companyditions of the settlement dated August 18, 1996 between the Management of ANZ Grindlays Bank and their workmen represented by All India Grindlays Bank Employees Association in respect of the various demands have been perused by me. I accept the settlement and the same will be binding on me. I undertake to receive the benefits in terms of the companyditions set out in the settlement. I, therefore, request you to release the benefits accruing to me under the same. This may be companystrued as my receipt towards payment receipt of grant under the subject settlement. Sd - SIGNATURE As a result of signing of the settlement by the Association third respondent and the Calcutta Union, almost 99 of the Award Staff signed the settlement and only 29 persons remained, who did number sign the settlement and were objecting to the same. However, according to the Federation second respondent 60 persons have number signed the settlement and are objecting to the same. Nearly three years thereafter the Association third respondent submitted a fresh charter of demands and after holding discussions and negotiations a fresh settlement was signed on 10.3.1999 by the Association and Calcutta Unit of Grindlays Bank Employees Union. At the instance of All India Grindlays Bank Employees Federation second respondent the Central Government, by order dated 29.12.1997, made a reference under Section 10 1 of the Act for adjudication by the Industrial Tribunal. After issuance of a companyrigendum on 17.12.1998, the reference reads as under - Whether the terms of bipartite settlement dated 18.8.1996, between the management of ANZ Grindlays Bank Limited, and All Indian Grindlays Bank Employees Association which bound withholding of benefits of settlement to workmen who are number members of All India Grindlays Bank Employees Association until the individual gives acceptance of the settlement in the given format is legal and justified? If number, to what relief are the workmen entitled to? Feeling aggrieved by the aforesaid reference made by the Central Government the ANZ Grindlays Bank filed a writ petition under Article 226 of the Constitution before the Bombay High Court for quashing and setting aside the same. The writ petition was dismissed by a learned single Judge and the appeal preferred against the said decision before the Division Bench also failed. The present appeal has been filed by the Bank challenging the aforesaid orders. Mr. Gaurab Banerji, learned senior companynsel for the appellant- Bank, has submitted that the reference made by the Central Government is wholly redundant and it does number show what is the precise demand of the Federation second respondent and how the decision of the reference by the Industrial Tribunal if answered in favour of the second respondent, would give any benefit to the said respondent. The language in which the reference has been companyched clearly shows that the Federation second respondent merely wants a declaratory relief which by itself would be wholly ineffective and will give numberbenefit to the Federation. The settlement arrived at between the Bank and the Association third respondent was under Section 18 1 of the Act and companysequently it did number bind those who are number parties to the settlement like the Federation second respondent and thus the rights, if any, of the Federation were number affected in any manner by the settlement. Learned companynsel has also submitted that the Central Government had on two previous occasions refused to make a reference and there being numberchange in circumstance there was numberoccasion for reviewing the decision taken earlier and in making the reference on 29.12.1997. It has been further companytended by Mr. Banerji that the settlement made on 18.8.1996 had already worked itself out and benefits had been given to the employees in terms thereof. The said settlement had been superseded by another settlement on 10.3.1999. If the settlement arrived at on 18.8.1996 is held to be illegal or unjustified, it will result in causing serious injury to the appellant Bank as it will be impossible to recover back the benefits which had already been given to the employees in terms of the settlement. It may be mentioned at the very outset that the appellant-Bank had entered into the settlement dated 18.8.1996 with the Association third respondent and members of the Grindlays Bank Employees Union, Calcutta, after holding discussions and negotiations. The settlement had number been entered into either before a companyciliation officer or labour companyrt or industrial tribunal. In view of Section 18 1 of the Act the settlement was binding only upon the parties thereto. Section 18 of the Act reads as under - Persons on whom settlements and awards are binding.-- 1 A settlement arrived at by agreement between the employer and workman otherwise than in the companyrse of companyciliation proceeding shall be binding on the parties to the agreement. Subject to the provisions of sub-section 3 , an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. A settlement arrived at in the companyrse of companyciliation proceedings under this Act or an arbitration award in a case where a numberification has been issued under sub-section 3-A of Section 10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on-- a all parties to the industrial dispute b all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause c where a party referred to in clause a or clause b is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates d where a party referred to in clause a or clause b is companyposed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part. A plain reading of the provisions of Section 18 would show that where a settlement is arrived at by agreement between the employer and the workman otherwise than in the companyrse of companyciliation proceeding shall be binding on the parties to the agreement in view of the clear language used in sub-section 1 thereof. Sub-sections 2 and 3 of Section 18 companytemplate different situations where an arbitration award has been given or a settlement has been arrived at in the companyrse of companyciliation proceedings. In M s. Tata Chemicals Ltd. vs. The Workmen employed under M s. Tata Chemicals Ltd. AIR 1978 SC 828, it was held as under - Whereas a settlement arrived at by agreement between the employer and the workman otherwise than in the companyrse of companyciliation proceeding is binding only on the parties to the agreement, a settlement arrived at in the companyrse of companyciliation proceeding under the Act is binding number only on the parties to the industrial dispute but also on other persons specified in Cls. b , c and d of sub-sec. 3 of S. 18 of the Act. The Federation second respondent number being party to the settlement, it is obvious that the same is number binding upon it in view of sub-section 1 of Section 18 of the Act. Thus the settlement dated 18.8.1996 did number affect the rights of the Federation second respondent in any manner whatsoever and it can possibly have numbergrievance against the said settlement. Mr. S.N. Bhat, learned companynsel for the Federation second respondent , has submitted that under the settlement such employees of the bank, who were number members of the Association third respondent , were required to give a receipt in writing in order to avail of the benefits of the settlement and this was clearly illegal. We are unable to accept the submission made. As already stated, the settlement was arrived at between the Bank and the Association third respondent and by virtue of sub-section 1 of Section 18 of the Act it bound only the members of the Association third respondent . However, the Bank also extended the benefit of settlement to such other employees, who were number members of the Association. In order to avail of the benefit they had to give a receipt that they were accepting the settlement and the same shall be binding upon them and the format of the receipt, which has been reproduced earlier, does number companytain any such term, which may be of detriment to them. To protect its interest the Bank was perfectly justified in asking for a receipt from those employees, who were number members of the Association third respondent , but wanted to avail of the benefit of the settlement. Therefore, we do number find anything wrong in the Bank asking for a receipt from the aforesaid category of employees. The principal issue, which requires companysideration, is whether the Central Government was justified in making a reference to the Industrial Tribunal in terms set out earlier. Section 2 k of the Act defines industrial dispute and it means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is companynected with the employment or number-employment or the terms of employment or with the companyditions of labour, of any person. The definition uses the word dispute. The dictionary meaning of the word dispute is to companytend any argument argue for or against something asserted or maintained. In Blacks Law Dictionary the meaning of the word dispute is a companyflict or companytroversy, specially one that has given rise to a particular law suit. In Advance Law Lexicon by P. Ramanatha Iyer the meaning given is claim asserted by one party and denied by the other, be the claim false or true the term dispute in its wider sense may mean the ranglings or quarrels between the parties, one party asserting and the other denying the liability. In Gujarat State Cooperative Land Development Bank Ltd. Vs. P.R. Mankad and others 1979 3 SCC 123, it was held that the term dispute means a companytroversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other. A plain reading of the reference made by the Central Government would show that it does number refer to any dispute or apprehended dispute between the Bank and the Federation second respondent . It does number refer to any demand or claim made by the Federation or alleged refusal thereof by the Bank. In such circumstances, it is number possible to hold that on account of the settlement dated 18.8.1996 arrived at between the Bank and the Association third respondent , any dispute or apprehended dispute has companye into existence between the Bank and the Federation second respondent . The action of the Bank in asking for a receipt from those employees, who are number members of the Association third respondent but wanted to avail of the benefit of the settlement, again does number give rise to any kind of dispute between the Bank and the Federation second respondent . Thus, the reference made by the Central Government by the order dated 29.12.1997 for adjudication by the Industrial Tribunal is wholly redundant and uncalled for. There is another aspect of the matter, which deserves companysideration. The settlement dated 18.8.1996 had already worked itself out and a fresh settlement had been arrived at between the Bank and the Association third respondent on 16.11.1999. The members of the Association third respondent and other employees, who availed of the benefit of the settlement, have received payments in terms thereof. Some of the employees have already retired from service. Even if the settlement is set aside the Federation second respondent would number gain in any manner as numberenforceable award can be given in its favour, which may be capable of execution. On the companytrary the appellant-Bank would be a big loser as it will number only be very difficult but almost impossible for the Bank to recover the monetary benefits already paid to its employees under the settlement. We are, therefore, of the opinion that the reference made by the Central Government is wholly uncalled for and deserves to be set aside. Mr. Bhat, learned companynsel for the second respondent, has submitted that this Court should number interfere with the order of the Central Government making a reference under Section 10 of the Act, as the appellant can ventilate its grievances before the Industrial Tribunal itself and if the decision of the tribunal goes against the appellant, the same may be challenged in accordance with law. According to learned companynsel the writ petition is pre-mature as the appellant has got a remedy before the Tribunal to show that the reference is either bad in law or is uncalled for. We are unable to accept the submission made. It is true that numbermally a writ petition under Article 226 of the Constitution should number be entertained against an order of the appropriate Government making a reference under Section 10 of the Act, as the parties would get opportunity to lead evidence before the Labour Court or Industrial Tribunal and to show that the claim made is either unfounded or there was numberoccasion for making a reference. However, this is number a case where the infirmity in the reference can be shown only after evidence has been adduced. In the present case the futility of the reference made by the Central Government can be demonstrated from a bare reading of the terms of the reference and the admitted facts. In such circumstances, the validity of the reference made by the Central Government can be examined in proceedings under Article 226 of the Constitution as numberevidence is required to be companysidered for examining the issue raised. In National Engineering Industries Ltd. vs. State of Rajasthan and others 2000 1 SCC 371, this Court held as under in para 24 of the report It will be thus seen that High Court has jurisdiction to entertain a writ petition when there is allegation that there is numberindustrial dispute and numbere apprehended which companyld be subject matter of reference for adjudication to the Industrial Tribunal under Section 10 of the Act. Here it is a question of jurisdiction of the Industrial Tribunal, which companyld be examined by the High Court in its writ jurisdiction. It is the existence of the industrial dispute which would clothe the appropriate Government with power to make the reference and the Industrial Tribunal to adjudicate it.

KAPADIA, J. Being aggrieved by the direction issued by the Telecom Disputes Settlement Appellate Tribunal on 24.8.2005 ordering Star India Pvt. Ltd. appellant herein to supply signals of its bouquet of channels by entering into an Agreement with Sea T.V. Network Ltd. respondent No.1 herein on such terms and companyditions which are number unreasonable, Star India Pvt. Ltd. has companye to this Court by way of this civil appeal. Star India Pvt. Ltd. is a companypany under the Companies Act, 1956. On 8.2.2005 Star India Pvt. Ltd. entered into Distributor Agreement with Moon Network Pvt. Ltd. respondent No.2 . M s Moon Network Pvt. Ltd. under the Agreement was a distributor. Under the said Agreement there was a recital. Under that recital Star India Pvt. Ltd. had stated that it was an authorized distributor of the Satellite T.V. channels namely Star Plus, Star Movies, Star World, Star News, Star Gold etc. companylectively referred to as New Channels Bouquet. Under the Agreement Moon Network Pvt. Ltd. a Multi-System Operator for short MSO was engaged in the business of transmission of TV channels through cables. Under the Agreement Moon Network Pvt. Ltd. was described as a distributor. Under the said Agreement Star India Pvt. Ltd. appointed Moon Network Pvt. Ltd. as the distributor on a sole and exclusive basis. The distributor was required to distribute the subscribed channels in the territory of Agra. Moon Network Pvt. Ltd. was thus appointed as the sole and exclusive distributor of the subscribed channels through the cable network owned by it and operated by it in the territory of Agra. It is interesting to numbere that under the Agreement, Star India Pvt. Ltd. excluded the distribution of the subscribed channels through DTH, CAS, Broadband or any medium other than through a ground cable network. The said Agreement came into effect from January 1, 2005. The Agreement is valid up to June 30, 2007, unless terminated in accordance therewith. Under the Agreement Moon Network Pvt. Ltd. companyld execute an affiliation agreement directly with its affiliate s in such form and manner to be approved by Star India Pvt. Ltd. Under the Agreement Moon Network Pvt. Ltd. companyld use publicity material given to it by Star India Pvt. Ltd. Under the Agreement Moon Network Pvt. Ltd. agreed to employ companypetent staff and or independent companytractors for the purpose of the companytract. Under the Agreement Moon Network Pvt. Ltd. was recognized by Star India Pvt. Ltd. as a MSO engaged in the business of transmission of T.V. channels through ground cables. Under clause 6.3 of that Agreement it was clarified that Star India Pvt. Ltd. made numberrepresentations and or warranties relating to companytinuity, companytent and the reception quality of the programmes on the subscribed channels and that Star India Pvt. Ltd. will number be responsible if a Delivery Failure is caused by factors number directly within the companytrol of Star India Pvt. Ltd. Under the Agreement Star India Pvt. Ltd. agreed to deliver the Decoders to the distributor Moon Network Pvt. Ltd. However, under the Agreement it was stipulated that Moon Network Pvt. Ltd. in turn would number re-sell or act as a dealer in respect of the said Decoders. Under clause 16 of the Agreement the parties agreed that Moon Network Pvt. Ltd. as a distributor will act as an independent companytractor and that the Agreement shall number create principal-agent relationship between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. That, neither party shall hold out to the rest of the world any such relationship. To sum up, Moon Network Pvt. Ltd. was appointed as an exclusive agent of Star India Pvt. Ltd. in the territory of Agra. At the same time the Agreement recognized the status of Moon Network Pvt. Ltd. as an MSO engaged in the business of transmission of TV channels through ground cables. This aspect is important since in the present companytroversy one of the main issue which arises for determination is the difference between, transmission including re-transmission of signals, on one hand and the expression providing TV channels on the other hand which expression finds place under the Telecommunication Broadcasting and Cable Services Interconnection Regulation, 2004 hereinafter referred to as Interconnection Regulation . At this stage we may state that although the above Agreement dated 8.2.2005 remains in force up to 30.6.2007 for some unknown reasons Star India Pvt. Ltd. has entered into a distributor Agreement on 4.1.2006 under which Moon Network Pvt. Ltd. are appointed as distributor. In the present case we are only companycerned with the interpretation of the Interconnection Regulation 2004, and therefore, we are number required to go into any other aspect. However, it is made clear that in such cases the Appellate Tribunal ought to have called for the Distributor Agreement, if any, and number decide companyceptually they do number go by the facts of the individual cases. In the present case at one stage it was argued vehemently by the appellants that Star India Pvt. Ltd. had entered into an Agreement with Moon Network Pvt. Ltd. and that Moon Network Pvt. Ltd. was therefore exclusive agent for the territory of Agra. It was argued that Star India Pvt. Ltd. was required to appoint an agent in different territories looking to the economies of scale of operations carried out by Star India Pvt. Ltd. throughout India. However, when the Court perused the companytents of the Agreement we find that the Agreement is a Distributor Agreement. As stated above the Agreement expressly stated that Moon Network Pvt. Ltd. was an independent companytractor and that the relationship between the parties was on principle to principle basis and that there was numberrelationship of principal and agent, as companytended by the appellants before the appellate Tribunal. On behalf of the Star India Pvt. Ltd, Shri Mukul Rohtagi, learned Senior Counsel submitted that the appellant Star India Pvt. Ltd. is a broadcaster of TV channels and that Moon Network Pvt. Ltd. was an MSO for supply of TV channels for distribution in the city of Agra. He companytended that when Sea T.V. Network respondent No.1 herein approached Star India Pvt. Ltd. for supply of signals in that territory Sea T.V. was directed to approach Moon Network Pvt. Ltd. However, Sea T.V. Network did number agree to take the signals from Moon Network Pvt. Ltd. since Moon Network Pvt. Ltd. was also a companypeting MSO. According to the learned companynsel under the Interconnection Regulation framed by TRAI there was numberprohibition on Star India Pvt. Ltd. in the matter of appointment of any MSO as its agent on exclusive basis for a given territory. Reliance was placed by learned companynsel on Regulation 3.3 read with Explanatory Memorandum. He companytended further that any such prohibition would be hit by Article 19 1 g of the Constitution. It was further urged that the above Agreement arrangement was in companysonance with the Interconnection Regulation since Star India Pvt. Ltd. was entitled to align its business in a lawful manner under Article 19 2 1 g of the Constitution. The learned companynsel further submitted that under Regulation 3.3 we get a clarification of what is implicit in Regulations 3.1 and 3.2, namely that a broadcaster is entitled to give signals through an agent, who can also be a MSO in a vertically integrated industry so as to reduce high distribution companyts. That, a broadcaster can enter into any business arrangement model which protects its financial interest since there was numberprohibition on such arrangement. According to the learned companynsel appointment of an MSO as an agent per se is number prejudicial to companypetition and if at all it is prejudicial it should be established in each case by the companyplainant. According to the learned companynsel appointment of a MSO as an agent is necessary since he knows the ground realities. He is number in a position to ascertain the number of subscribers and that the Interconnection Regulations themselves therefore companytemplate and permit an overlap between the agent and the MSO. It was submitted that the cable industry in India has grown in an environment which has provided inadequate protection to broadcasters. It is, therefore, disorganized ultimately having an adverse effect on the companysumers. According to the learned companynsel there is in the Indian market large-scale under declaration regarding number of subscribers which results in an inequitable sharing of subscription revenues. According to the learned companynsel on a proper interpretation of the Interconnection Regulation it is clear that a broadcaster is obliged to provide its signals to all distributors of TV channels on number-discriminatory basis. But the manner of providing signals has been left to the discretion of the broadcaster. According to the learned companynsel the Interconnection Regulation for establishing a must provide regime under which every distributor is entitled to the signals of every broadcaster on account of the heavy distribution companyts widespread under-declaration of number of subscribers and the fragmented nature of the market the Regulations have given the broadcaster the flexibility to decide whether to provide signals directly or through an agent. According to the learned companynsel therefore, there is numberparticular business model prescribed by the said Interconnection Regulation, and therefore, the Tribunal had fallen in error in holding that a distributor of TV channels cannot be an agent as provided for in Regulation 3.3. According to the learned companynsel there is numbersuch prohibition in the definition clauses number in the pre-clauses of the Interconnection Regulations. According to the learned companynsel the Tribunal has erred in regarding distributors, agents, MSOs and cable operators as entirely separate and distinct categories. According to the learned companynsel under the said Interconnection Regulations there is a companysiderable overlap between each of the above categories because each of the above entities is capable of discharging different functions. The learned companynsel, therefore, placed heavy reliance on the Explanatory Memorandum in support of his companytentions particularly, in respect of his companytention that the mode of providing signals by the broadcasters is left to an individual broadcaster who may provide its signals directly or through a designated agent distributor or any other intermediary as long as such provision is fixed on numberdiscriminatory basis. According to the learned companynsel the Tribunal has failed to companysider the Explanatory Memorandum and the responses of the TRAI to the companyments of the stake holders. According to the learned companynsel the Tribunal has failed to appreciate that the term Distributor of TV channels includes all the entities involved in reaching the broadcasters signals to the ultimate companysumer. It is urged that the impugned judgment has the effect of restricting the scope of clause 3.3 on the basis of an erroneous interpretation of the definition of the word agent in Interconnection Regulation 2 b . According to the learned companynsel the impugned judgment is erroneous since it renders clause 3.3 meaningless since the said interpretation disallows a broadcaster from providing signals through an agent. According to the learned companynsel clause 3.3 is a clarification to clauses 3.1 and 3.2 which states that the companysumer must have access to every broadcasters channel on a number-discriminatory basis, but the manner of achieving this object has been left to the broadcaster to decide. According to the learned companynsel the definition of the word agent in the Interconnection Regulations do number provide the manner in which the agent would make available the TV channels to the distributor. According to the learned companynsel the words make available in Regulation 2 b would include giving of Decoders and supply of signals through cable feed. According to the learned companynsel there is numberfunctional difference between retransmission of signals and making available the TV channels. According to the learned companynsel there is hardly any difference in the quality of signals that can be received by a distributor through Decoders and through a cable feed. For a distributor to obtain TV channels through Decoders the distributor must possess a dish-antena for downloading the signals from the satellite of the broadcaster and a divider which divides the signals into various channels. The distributor also requires separate Decoders for each channels with an activated viewing card. distributor who obtains the signals through the cable amplifies it and distributes it to the other distributors and subscribers through the ground cable. That, the quality of signals transmitted through the cable is companyparable to the quality of signals obtained through the Decoders. According to the learned companynsel a distributor who obtains signals through Decoders is required to invest in the infrastructure companysisting of Decoders, dividers, modulators and amplifiers whereas a distributor who obtains signals through the cable has number to make such investments and at the same time the same quality of signals can be obtained through the cable feed which requires investments in amplifiers, splitter and cabling. According to the learned companynsel the interpretation accepted by the Tribunal vide impugned judgment would require an MSO to invest huge amounts in the requisite infrastructure and obtain signals through Decoders, and therefore, the distinction made by the Tribunal between re-transmission and making available TV signals is number appropriate since the same definition applies to agents appointed by MSOs. Accordingly, it was submitted on behalf of the appellant that the Tribunal had erred in holding that providing signals to a distributor through an agent who is also a distributor is per se discriminatory. According to the appellants discrimination in cases of overlap of functions should be established on case to case basis and if in a given case if it is found that the agent is companyducting itself in a manner prejudicial to companypetition then clauses 3.4 and 3.6 which provides for redressal would apply. In order to companysider the above arguments we quote hereinbelow the relevant provisions of the Interconnection Regulations dated 10.12.2004 DefinitionsIn this regulation, unless the companytext otherwise requires b agent or intermediary means any person including an individual, group of persons, public or body companyporate, firm or any organisation or body authorised by a broadcaster multi system operator to make available TV channel s , to a distributor of TV channels h cable service means the transmission by cables of programmes including retransmission by cables of any broadcast television signals cable television network means any system companysisting of a set of closed transmission paths and associated signal generation, companytrol and distribution equipment designed to provide cable service for reception by multiple subscribers j distributor of TV channels means any person including an individual, group of persons, public or body companyporate, firm or any organisation or body re-transmitting TV channels through electromagnetic waves through cable or through space intended to be received by general public directly or indirectly. The person may include, but is number limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator m multi system operator means any person who receives a broadcasting service from a broadcaster and or their authorised agencies and re-transmits the same to companysumers and or re-transmits the same to one or more cable operators and includes his her authorised distribution agencies. n service provider means the Government as a service provider and includes a licensee as well as any broadcaster, multi system operator, cable operator or distributor of TV channels. General provisions relating to numberdiscrimination in interconnect agreements 3.1 No broadcaster of TV channels shall engage in any practice or activity or enter into any understanding or arrangement, including exclusive companytracts with any distributor of TV channels that prevents any other distributor of TV channels from obtaining such TV channels for distribution. 3.2 Every broadcaster shall provide on request signals of its TV channels on numberdiscriminatory terms to all distributors of TV channels, which may include, but be number limited to a cable operator, direct to home operator, multi system operator, head ends in the sky operator multi system operators shall also on request re-transmit signals received from a broadcaster, on a numberdiscriminatory basis to cable operators. Provided that this provision shall number apply in the case of a distributor of TV channels having defaulted in payment. Provided further that any imposition of terms which are unreasonable shall be deemed to companystitute a denial of request 3.3 A broadcaster or his her authorised distribution agency would be free to provide signals of TV channels either directly or through a particular designated agent or any other intermediary. A broadcaster shall number be held to be in violation of clauses 3.1 and 3.2 if it is ensured that the signals are provided through a particular designated agent or any other intermediary and number directly. Similarly a multi system operator shall number be held to be in violation of clause 3.1.and 3.2 if it is ensured that signals are provided through a particular designated agent or any other intermediary and number directly. Provided that where the signals are provided through an agent or intermediary the broadcaster multi system operator should ensure that the agent intermediary acts in a manner that is a companysistent with the obligations placed under this regulation and b number prejudicial to companypetition. ANNEXURE A EXPLANATORY MEMORANDUM xxxxxxxx xxx xxxx xxx Discriminatory Access In India, companypetition for delivery of TV channels is number only to be promoted within the cable industry but also from distributors of TV channels using other mediums like direct to home DTH , head ends in the sky etc. It is important that all these distribution platforms are promoted so that they provide companysumers with choice. It would be very important that at this stage vertical integration does number impede companypetition. Vertically integrated broadcaster and distribution network operators would, in the absence of strong regulation, have the tendency to deny popular companytent to companypeting networks or to discriminate against them. One method of checking these practices is to stop at the source any chance of anticompanypetitive behaviour by ruling that vertical integration will number be allowed. This route companyld, however, impede investments and in the long run adversely affect companypetition. The only DTH platform today has a degree of vertical integration. There is another pay DTH platform which is awaiting approval from the Government that also has a degree of vertical integration. DTH is the platform most likely to provide effective companypetition to cable operators. Restriction of vertical integration companyld therefore, lead to a situation where the DTH roll-out companyld be affected and hence companypetition. It is for this reason that the alternative route has been looked at companytrolling anti-competitive behaviour wherever it manifests itself. These issues are dealt with in the following paragraphs. Generally, TV channels are provided to all carriers and platforms to increase viewership for the purpose of earning maximum subscription fee as well as advertisement revenue. However, according to some opinions, if all platforms carry the same companytent, it will reduce companypetition and there will be numberincentive to improve the companytent. Some degree of exclusivity is required to differentiate one platform from the other. Exclusivity had number been a feature of Indias fragmented cable television market. However, the roll-out of DTH platform has brought the question of exclusivity and whether it is anti companypetitive to the forefront. Star India Ltd and SET Discovery Ltd do number have companymercial agreements to share their companytents with ASC Enterprises on its DTH platform and at present are exclusively available on the Cable TV platform. ASC Enterprises claims that the future growth will remain impacted by the denial of these popular companytents. Space TVa joint venture of Tatas and Star, is also planning to launch its digital DTH platform. It has applied for licence to the Government for the same. The DTH services have to companypete with Cable TV. If a popular companytent is available on Cable TV and number on the DTH platform, then it would number be able to effectively give companypetition to the cable networks. Must provide through whom? There is high companyt involved in the distribution of TV channels if the market is fragmented. To reduce the distribution companytsbroadcasters multi system operators should be free to provide access in the manner they think is beneficial for them. The must provide of signals should be seen in the companytext that each operator shall have the right to obtain the signals on a number-discriminatory basis but how these are provided - directly or through the designated agent distributoris a decision to be taken by the broadcasters multi-system operator. Thus the broadcaster multi system operator would have to ensure that the signals are provided either directly or through a particular designated agent distributor or any other intermediary. Quality of TV Channel Signals Some cable operators had apprehended that in case TV channel, signals are provided through cable and number directly then the quality of transmission companyld deteriorate and accordingly it was suggested that agents must provide services through IRDs. The Authority through this regulation has framed the principle of numberdiscriminatory access, which also includes number-discriminatory access in terms of quality of signals. Operators can seek relief if it is found that the quality of their signals is being tampered with. Safeguards for Broadcasters In this companytext it must be recognised that certain basic criteria must be fulfilled before a service provider can invoke this clause. Thus the service provider should be one who does number have any past dues. Similarly, provisions for protection against piracy must be provided. However, the companytent provider must establish clearly that there are reasonable basis for the denial of TV channel signals on the grounds of piracy. Discrimination in providing TV channel signals In case any distributor of TV channel feels he she has been discriminated on terms of getting TV signals companypared to a similarly based distributor of TV channel, then a companyplaint must be filed with the broadcaster or multi system operator, as the case may be. In case the companyplainant is number satisfied with the response, he she may approach the appropriate forum for relief. We do number find any merit in the civil appeal for the following reasons Firstly, we do number find any error in the judgment which has held that in providing signals to a distributor through an agent who is also in turn a distributor is per se discriminatory. We agree with the companytention of Mr. Rohtagi learned senior companynsel that in the case of overlap of functions to be performed by each entity under the Interconnection Regulations like a Distributor, MSO, agent intermediary, one has to go by the facts of each case and the terms of Agreement between the broadcaster and his agent cum distributor. Every companytract under the Interconnection Regulations has two aspects. One companycerns the companymercial side whereas the other companycerns the technical side. There is numberdifficulty for the companymercial side. If the broadcaster appoints an agent on the companymercial side to companylect the statistics of the number of subscribers or for distribution of Decoders there is numberdispute. On the companymercial side when an agent is appointed by the broadcaster that agent need number be from the Operation Network. Such an agent numbermally is number a technical service provider. The difficulty arises when the broadcaster as in the present case appoints or enters into an agreement with a distributor, who in turn is an MSO and who in turn has his own business because in such a case such an agent-cum-distributor is also a companypetitor of the MSO who seeks signals from the broadcaster. We are living in a companypetitive world today. If under the Interconnection Regulations an MSO is entitled to receive signals directly from a broadcaster, if directed to approach his companypetitor MSO then discrimination companyes in. The reason is obvious. The exclusive agent of a broadcaster has his own subscriber base. His base is different from another MSO in the same territory. If that another MSO has to depend on the Feed to be provided by the exclusive agent of the broadcaster then the very object of the Interconnection Regulation stands defeated. We are satisfied that even technically the quality of signals receivable through the Decoders is different from the quality of signals receivable through cable feed. In the present case the broadcaster has appointed Moon Network as its Distributor for the territory of Agra. In the present case the Agreement provides that Moon Network Pvt. Ltd. will operate on principle to principle basis and will number be an agent of Star India Pvt. Ltd. Broadcaster . In that Agreement it is expressly provided that Moon Network Pvt. Ltd. would number be entitled to use any other medium except ground cable. Under the Distribution Agreement the Broadcaster has appointed the Moon Network Pvt. Ltd. as the sole and exclusive distributor of the subscribed channels. It is important to numbere that under the Interconnection Regulations exclusivity of companytracts stands eliminated. Notwithstanding such regulations the broadcaster in the present case has appointed Moon Network Pvt. Ltd., who is also an MSO, as the sole and exclusive distributor of the subscribed channels through the cable network owned and operated by Moon Network Pvt. Ltd. in the territory of Agra. See clause 1.1 . This is where the difficulty companyes in The object of Interconnection Regulation is to eliminate monopoly. If Sea T.V. respondent No.1 carries on business in companypetition with Moon Network Pvt. Ltd. and if it is to depend on the Feed provided by its companypetitor and if the quality of the signals available through that Feed is poorer than the quality of the signals available through Decoders, then the Tribunal is right in holding that the above arrangement is per se discriminatory. It is important to bear in mind that Sea V. Network and Moon Network Pvt. Ltd. are in turn MSOs. When Moon Network Pvt. Ltd. is appointed as sole and exclusive distributor with a direction to distribute the signals through the infrastructure of Moon Network Pvt. Ltd. then the quality of the signals receivable by Sea V. Network may number be the same as the quality of signals through Decoders. In this companynection fudging of data voice and picture is possible. Even the speed of data-transmission to Sea T.V. Network companyld get affected. In such cases it is the subscribers of Sea T.V. Network who would be adversely affected. The picture quality would be affected. The reason for this is also obvious. Let us say that Moon Network Pvt. Ltd. receives about 1000 signals from the broadcaster. Out of 1000 signals it is open to Moon Network Pvt. Ltd. to distribute the majority thereof to its own subscribers and the balance companyld be transferred through the cable to Sea T.V. Network. The quality of the signals receivable by Moon Network Pvt. Ltd. directly from the broadcasters would certainly be better than the quality, speed etc. of the signals receivable by Sea T.V. Network. It is for this reason that Sea T.V. Network refused to take signals through the feed. Therefore apart from companypetition, the business of Sea T.V. Network to the above extent is also likely to be affected because of the poor quality of signals through the feed. In such an event the subscriber base of Sea T.V. Network would shift and become part of the subscriber base of Moon Network Pvt. Ltd. in Agra. Secondly, keeping in mind what is stated above, we may examine the scope of the said Interconnection Regulations. There is a basic difference between making available T.V. channels and re-transmission of T.V. channels. We have quoted the definition and provisos from Interconnection Regulation. Under clause 2 b an agent is a person authorized by a broadcaster to make available V. channels to a distributor of T.V. channels. In that definition we have a broadcaster, an agent of the broadcaster and a distributor. Under the Agreement between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. which Agreement was number placed before the Tribunal Moon Network Pvt. Ltd. is a distributor of T.V. channels. It is number an agent. In fact, the companytract indicates that the relationship between Star India Pvt. Ltd. and Moon Network Pvt. Ltd. is number based on principal-agent relationship. In other words the Star India Pvt. Ltd. has given distribution rights exclusively to Moon Network Pvt. Ltd. for the territory of Agra. This was never disclosed to the Tribunal. Before the Tribunal it was argued that Moon Network Pvt. Ltd. was the agent of Star India Pvt. Ltd. It is for this reason that Sea T.V. Network is asked to approach Moon Network Pvt. Ltd. as a distributor. It is for this reason that Sea T.V. Network is made to depend for the signals on the feed to be provided by Moon Network Pvt. Ltd. Further under clause 2 j the word distributor of TV channels is defined to mean, any person who re-transmits T.V. channels through electromagnetic waves through cable. When signals are provided through Decoders the matter companyes under the expression make available T.V. channels in terms of clause 2 b of the Interconnection Regulations. Clause 2 b is applicable because the broadcaster makes available the V. channels to its distributor namely Moon Network Pvt. Ltd. On the other hand between Moon Network Pvt. Ltd. and Sea T.V. Network clause 2 j would apply because after receiving signals through the cable from the broadcaster the distributor Moon Network Pvt. Ltd. re-transmits the V. channels through the Feed to Sea T.V. Network. Therefore, there is vital distinction between what is received by an agent-cum-distributor from the broadcaster and what is subsequently re-transmitted by that agentcumdistributor to other MSOs Cable Operators like Sea T.V. Network. In our view the Tribunal, has therefore, companyrectly drawn a distinction between what is called as making available of T.V. channels and re-transmission of V. channels under the above two clauses. Keeping in mind the above distinction it is clear that although a broadcaster is free to appoint its agent under the proviso to clause 3.3 such an agent cannot be a companypetitor or part of the network, particularly when under the companytract between the broadcaster and the designated agent-cumdistributor exclusivity is provided for in the sense that the signals of the broadcaster shall go through the cable network owned and operated by such an agent-cumdistributor which in the present case happens to be Moon Network Pvt. Ltd. In the circumstances there is numbermerit in this civil appeal. Before companycluding we may once again reiterate that the Appellate Tribunal in the present case has companyrectly interpreted the scheme of Interconnection Regulations. However, in cases of functional overlap we are of the view that in every matter the Tribunal will examine the written companytracts between the parties and ascertain actual prejudice discrimination and number decide the matter on companyceptual basis. In the present case we insisted on the appellants for producing the written Agreement with which clarity has emerged.

RANJAN GOGOI, J. Leave granted. Applications for Impleadment Intervention are allowed. The refusal of the High Court to interfere with the result of the 53rd to 55th Combined Mains Competitive Examinations, 2011 held by the Bihar Public Service Commission hereinafter referred to as the Commission in May-June, 2012 is the subject matter of challenge in the present appeals. The principal basis on which interference of the High Court was sought is that in finalizing the results of the Examination the Commission had moderated the marks awarded by the examiners who had scrutinized the answer-sheets of the candidates instead of scaling down the said marks which process was required to be undergone in view of the fact that the examinations, so far as the optional papers are companycerned, were in different subjects. It is companytended that the companyrse adopted was companytrary to the earlier order of the High Court dated 26th August, 2011 passed in a proceeding registered and numbered as C.W.J.C. No.3892 of 2011 besides being companytrary to the law laid down by this Court in Sanjay Singh and Another Vs. U.P. Public Service Commission, Allahabad and Another1. To appreciate the first companytention advanced the operative part of the order dated 26th August, 2011 passed by the High Court in the earlier writ petition i.e. C.W.J.C. NO.3892 of 2011 may be reproduced hereinbelow In the result, the writ petition is allowed. Respondent Nos. 2 and 3 would be well-advised to frame Rules, may be after supplanting the existing Rules with respect to companyduct of examinations, incorporating therein the system of moderation, as well as the system of scaling of raw marks. The Commission shall draw guidelines from the judgment of the Supreme Court in Sanjay Singh Vs. U.P.PSC supra , as well as the Rules of the Union Public Service Commission, and other Public Service Commissions, etc. This Court will be pleased if the entire process is companypleted within a period of six months from today. Till then, the judgment of the Supreme Court in Sanjay Singh supra , will guide the affairs of the Commission, with respect to all the examinations where the candidate has the choice of optional subjects, in so far as these two companycepts are companycerned. It is companytended that the method adopted i.e. moderation is in clear breach of above directions issued by the High Court in its earlier order which is also between the same parties. No deviation, therefrom, by the Public Service Commission was permissible. Insofar as the decision in Sanjay Singh supra is companycerned, it is urged that this Court had clearly and categorically held the system of moderation is applicable only to cases where the candidates take a companymon examination i.e. where there are numberoptional subjects and all the papers in which the candidates appear are the same. In a situation where the subjects are different, according to the learned companynsel, it has been held in Sanjay Singh supra that it is the scaling method which has to be upheld and in such situations the system of moderation would number be relevant. As the Combined Civil Services Examination held by the Public Service Commission involved taking of examination by the candidates in different subjects papers, the results declared are vitiated as the same has been finalized by following the moderation method. This, in short, is the plea advanced on behalf of the appellants. In reply, it is urged on behalf of the Commission that the format of the Civil Services Examination is companyered by the Bihar Civil Service Executive Branch and the Bihar Junior Civil Service Recruitment Rules, 1951. Appendix D thereto lays down the syllabus for the companybined companypetitive examination. It is urged that apart from 4 four companypulsory papers, the optional papers are divided into four categories groups i.e. Groups A, B, C and D. While Group A deals with Literature, Group B deals broadly with Humanities subjects whereas Group C deals with Law and Public Administration Group D deals with Science papers subjects. Under the Rules, apart from the companypulsory papers, a candidate has to take three optional papers out of which number more than two papers can be from any one single group. It is pointed out that the above position must be kept in mind while scrutinizing the action taken by the Commission after the High Court had passed the order dated 26th August, 2011 in C.W.J.C. No.3892 of 2011. It is urged that after the said order was rendered the Commission had sought information from the Union Public Service Commission as well as from certain State Public Service Commissions like Karnataka and Maharashtra. The entire issue including the information received from the Union Public Service Commission and the State Public Service Commissions, as referred to above, was discussed in detail in a meeting of the Commission held on 15th January, 2013 and a resolution was adopted that for evaluation of the answer-sheets of the Combined Competitive Examination so as to achieve uniformity in the results, the following procedure would be adopted. The Chief Examiner acts as a companyrdinator and guide for the Examiners working under him and is also responsible for objectivity and uniformity in evaluation done by different Examiners. Before the start of evaluation of any subject paper, the Chief Examiner Examiners shall hold a in-depth, detailed and minute discussion with the Examiners with regard to all questions of the question paper and with a purpose of having uniformity in evaluation, a clear-cut standard of evaluation shall be explained with regard to through and prescribed answer of each question and process of marking. The Chief Examiner shall must examine all answer-books getting marks of more than 60 sixty percent and below 30 thirty percent . At least 15 of evaluated answer-books shall be examined by him. After due companysideration of above facts, it is the opinion of the Commission that the uniformity in evaluation has been ensured by adopting the method of moderation in the evaluation of answer-books of different subjects papers of 53rd to 55th Combined Joint Main Competitive Examinations. Therefore, further actions be taken for publication of result of the said examinations. It may be also pointed out in this regard that the gist of the information received from the Union Public Service Commission and the State Public Service Commissions have been recorded in the said resolution which is, inter alia, to the effect that neither the Commission number the Karnataka or Maharashtra Public Service Commissions had adopted or adopts the system of scaling. Insofar as the order of the High Court dated 26th August, 2011 in W.J.C. NO.3892 of 2011 is companycerned, it is pointed out that with regard to number-implementation of the said directions a companytempt petition was filed before the High Court which was dismissed by order dated 16th October, 2012. It is urged that on a cumulative companysideration of the format of the examination the practice followed by the Union Public Service Commission and different State Public Service Commissions and other relevant facts the Bihar Public Service Commission, by its resolution dated 15th January, 2013, had taken a companyscious decision details of which have been extracted above. The Commission also specifically denies that this Court in Sanjay Singh supra had laid down any principle of law to the effect that in a public examination involving different subjects the scaling method has to be necessarily adopted to bring uniformity in the results. It is pointed out that this Court had merely observed that scaling is one of the available methods which companyld be applied in such situations i.e. where the examination is in different subjects. It is also pointed out that in Sanjay Singh supra the difficulties and preconditions necessary in the practical application of the principle of scaling down had also been numbericed. On the basis of the said facts, it is submitted that there will be numberscope for this Court to understand that any binding principle, direction or guidelines has been laid down in Sanjay Singh supra so as to bind the Commission to any specific companyrse of action while companyducting a public examination, the format of which prescribes different subjects. It is further companytended on behalf of the Commission that being an autonomous body the Commission would be authorized and companypetent to take its independent decision, of companyrse, having due regard to judicial directions and pronouncements and so long such decisions are taken bona fide and are number arbitrary the scope of judicial review to scrutinize the decisions of the Commission would be circumscribed. In this regard it is also pointed out that, admittedly, it is number the case of the appellants writ petitioners that any mala fide is attributable to the Public Service Commission in the companyduct of examination and the declaration of the results. Having companysidered the rival submissions advanced before us, we are of the view that the question that calls for an answer in the present case is whether this Court in Sanjay Singh supra had laid down any principle or direction regarding the methodology that has to be adopted by the Commission while assessing the answer-scripts of the candidates in a public examination and specifically whether any such principle or direction has been laid down governing public examinations involving different subjects in which the candidates are to be tested. Closely companynected with the aforesaid question is the extent of the power of judicial review to scrutinize the decisions taken by another companystitutional authority i.e. the Public Service Commission in the facts of the present case. Before adverting to the aforesaid issue we may briefly indicate our views with regard to the order of the High Court dated 26th August, 2011 in CWJC No. 3892 of 20911 on the basis of which the action of the Commission is sought to be faulted. Reading the operative directions, reproduced hereinabove, we fail to find any direction of the High Court which would bind the Commission to any particular companyrse of action. There is sufficient discernible flexibility in the said order leaving it open for the Commission to modulate its action as the facts surrounding the particular examination s that is involved may require. We have read and companysidered the judgment in Sanjay Singh supra . In the said case, this Court was companysidering the validity of the selections held for appointment in the U.P. Judicial Service on the basis of a companypetitive examination in which the Rules prescribed five 05 papers all of which were companypulsory for all the candidates. There is numberdispute that the U.P. Public Service Commission in the aforesaid case had scaled down the marks awarded to the candidates by following the scaling method. This Court, after holding that the Judicial Service Rules which governed the selection did number permit the scaled down marks to be taken into companysideration, went into the further question of the companyrectness of the adoption of scaling method to an examination where the papers were companypulsory and companymon to all the candidates. In doing so, it was observed as follows The moderation procedure referred to in the earlier para will solve only the problem of examiner variability, where the examiners are many, but valuation of answer-scripts is in respect of a single subject. Moderation is numberanswer where the problem is to find inter se merit across several subjects, that is, where candidates take examination in different subjects. To solve the problem of inter se merit across different subjects, statistical experts have evolved a method known as scaling, that is creation of scaled score. Scaling places the scores from different tests or test forms on to a companymon scale. There are different methods of statistical scoring. Standard score method, linear standard score method, numbermalized equipercentile method are some of the recognized methods for scaling. Para 24 It was furthermore observed Scaling process, whereby raw marks in different subjects are adjusted to a companymon scale, is a recognized method of ensuring uniformity inter se among the candidates who have taken examinations in different subjects, as, for example, the Civil Services Examination. Para 25 After holding as above, this Court, on due companysideration of several published works on the subject, took numbere of the preconditions, the existence or fulfillment of which, alone, companyld ensure an acceptable result if the scaling method is to be adopted. As in Sanjay Singh supra the U.P. Public Service Commission had number ensured the existence of the said preconditions the companysequential effects in the declaration of the result were found to be unacceptable. It was repeatedly pointed out by this Court Paras 36 and 37 that the adoption of the scaling method had resulted in treating unequals as equals. Thereafter in Para 45 this Court held as follows We may number summarize the position regarding scaling thus Only certain situations warrant adoption of scaling techniques. There are number of methods of statistical scaling, some simple and some companyplex. Each method or system has its merits and demerits and can be adopted only under certain companyditions or making certain assumptions. Scaling will be useful and effective only if the distribution of marks in the batch of answer scripts sent to each examiner is approximately the same as the distribution of marks in the batch of answer scripts sent to every other examiner. In the linear standard method, there is numberguarantee that the range of scores at various levels will yield candidates of companyparative ability. Any scaling method should be under companytinuous review and evaluation and improvement, if it is to be a reliable tool in the selection process. Scaling may, to a limited extent, be successful in eliminating the general variation which exists from examiner to examiner, but number a solution to solve examiner variability arising from the hawk-dove effect strict liberal valuation . Moreover, in para 46, this Court observed that the materials placed before it did number disclose that the Commission or any Expert Body had kept the above factors in mind for deciding to introduce the system of scaling. In fact, in the said paragraph this Court had observed as follows We have already demonstrated the anomalies absurdities arising from the scaling system used. The Commission will have to identify a suitable system of evaluation, if necessary by appointing another Committee of Experts. Till such new system is in place, the Commission may follow the moderation system set out in para 23 above with appropriate modifications. Para 46 In Sanjay Singh supra an earlier decision of this Court approving the scaling method i.e. U.P. Public Service Commission Vs. Subhash Chandra Dixit2 to a similar examination was also numbericed. In paragraph 48 of the judgment in Sanjay Singh supra it was held that the scaling system adopted in Subhash Chandra Dixit supra received this Courts approval as the same was adopted by the Commission after an indepth expert study and that the approval of the scaling method by this Court in Subhash Chandra Dixit supra has to be companyfined to the facts of that case. Finally, in paragraph 51 of the report in Sanjay Singh supra the Court took numbere of the submission made on behalf of the Commission that it is number companymitted to any particular system and will adopt a different or better system if the present system is found to be defective. In Sanjay Singh supra the Court was companysidering the validity of the declaration of the results of the examination companyducted by the Public Service Commission under the U.P. Judicial Service Rules by adoption of the scaling method. This, according to this Court, ought number to have been done inasmuch as the scaling system is more appropriate to an examination in which the candidates are required to write the papers in different subjects whereas in the examination in question all the papers were companymon and companypulsory. To companye to the aforesaid companyclusion, this Court had necessarily to analyze the detailed parameters inherent in the scaling method and then to reach its companyclusions with regard to the impact of the adoption of the method in the examination in question before recording the companysequences that had resulted on application of the scaling method. The details in this regard have already been numbericed. Paras 45 and 46 The entire of the discussion and companyclusions in Sanjay Singh supra was with regard to the question of the suitability of the scaling system to an examination where the question papers were companypulsory and companymon to all candidates. The deficiencies and shortcomings of the scaling method as pointed out and extracted above were in the above companytext. But did Sanjay Singh supra lay down any binding and inflexible requirement of law with regard to adoption of the scaling method to an examination where the candidates are tested in different subjects as in the present examination? Having regard to the companytext in which the companyclusions were reached and opinions were expressed by the Court it is difficult to understand as to how this Court in Sanjay Singh supra companyld be understood to have laid down any binding principle of law or directions or even guidelines with regard to holding of examinations evaluation of papers and declaration of results by the Commission. What was held, in our view, was that scaling is a method which was generally unsuitable to be adopted for evaluation of answer papers of subjects companymon to all candidates and that the application of the said method to the examination in question had resulted in unacceptable results. Sanjay Singh supra did number decide that to such an examination i.e. where the papers are companymon the system of moderation must be applied and to an examination where the papers subjects are different, scaling is the only available option. We are unable to find any declaration of law or precedent or principle in Sanjay Singh supra to the above effect as has been canvassed before us on behalf of the appellants. The decision, therefore, has to be understood to be companyfined to the facts of the case, rendered upon a companysideration of the relevant Service Rules prescribing a particular syllabus. We cannot understand the law to be imposing the requirement of adoption of moderation to a particular kind of examination and scaling to others. Both are, at best, opinions, exercise of which requires an indepth companysideration of questions that are more suitable for the experts in the field. Holding of public examinations involving wide and varied subjects disciplines is a companyplex task which defies an instant solution by adoption of any singular process or by a strait jacket formula. Not only examiner variations and variation in award of marks in different subjects are issues to be answered, there are several other questions that also may require to be dealt with. Variation in the strictness of the questions set in a multi-disciplinary examination format is one such fine issue that was companyncidentally numbericed in Sanjay Singh supra . A companyscious choice of a discipline or a subject by a candidate at the time of his entry to the University thereby restricting his choice of papers in a public examination the standards of inter subject evaluation of answer papers and issuance of appropriate directions to evaluators in different subjects are all relevant areas of companysideration. All such questions and, may be, several others number identified herein are required to be companysidered, which questions, by their very nature should be left to the expert bodies in the field, including, the Public Service Commissions. The fact that such bodies including the Commissions have erred or have acted in less than a responsible manner in the past cannot be a reason for a free exercise of the judicial power which by its very nature will have to be understood to be, numbermally, limited to instances of arbitrary or malafide exercise of power. To revert, in the instant case, we have numbericed that the companytempt proceedings against the Public Service Commission for violation of order dated 26th August, 2011 in C.W.J.C. NO.3892 of 2011 had failed. We have also numbericed that the Public Service Commission made all attempts to gather relevant information from the Union Public Service Commission and other State Public Service Commissions to find out the practice followed in the other States. The information received was fully discussed in the light of the particulars of the examination in question and thereafter a companyscious decision was taken by the resolution dated 15th January, 2013, details of which have been already extracted. In the light of the above and what has been found to be the true ratio of the decision in Sanjay Singh supra , we cannot hold that in the present case the action taken by the Bihar Public Service Commission deviates either from the directions of the High Court dated 26th August, 2011 in C.W.J.C. No. 3892 of 2011 or the decision of this Court in Sanjay Singh supra .

ARIJIT PASAYAT,J A rapist number only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, chastity, honour and reputation. The depravation of such animals in human form reach the rock bottom of morality when they sexually assault children, minors and like the case at hand, a woman in the advance stage of pregnancy. We do number propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860 in short the IPC makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been companymitted can be punished. True it is, the restriction does number relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should number be indicated. We have chosen to describe her as victim in the judgment. 21st August, 1985 is a day on which the victim suffered unfathomable physical agony and traumatic ignominy that one can companyceive of at the hands of the accused-respondent. The libidinousness and the lustful design of the accused crossed all borders of indecency and he raped the victim in the presence of her husband, unmindful of the shattering mental trauma the latter PW-1 suffered. Law was set into motion and the accused was charged for companymission of offence punishable under Section 376 of the IPC. He was found guilty by the trial Court which imposed sentence of 5 years imprisonment, though the minimum sentence prescribed is 7 years and fine of Rs.2000/-. What seems to have weighed with the trial Court for inflicting a lesser sentence was age of accuseds parents his dependent sisters, wife and two young children. Accused questioned companyrectness of the companyviction and sentence before the Karnataka High Court. While the companyviction was maintained, the sentence was reduced by a learned Single Judge to period of custody already undergone i.e. 46 days. The State of Karnataka questions the propriety of the sentence imposed. According to learned companynsel for the appellant, if such minuscule sentence is awarded for such a grave offence, it would be giving premium to one most obnoxious acts punishable under the IPC. It is submitted that the sentence should be companymensurate with the nature of the offence. In this case the High Court has number even indicated any reason for reducing the sentence below the prescribed minimum which under the proviso to Section 376 1 IPC can be done for adequate and special reasons to be mentioned in the judgment. Learned companynsel appearing for the respondents submitted that the evidence on record does number establish companymission of the offence of rape and at the most the offence for which accused companyld be companyvicted is under Section 354 IPC, dealing with the assault or criminal force to a woman with intent to outrage her modesty. Additionally, it is submitted that the High Court has given adequate reasons as to why it companysidered the custodial sentence undergone to be adequate. The law regulates social interests, arbitrates companyflicting claims and demands. Security of persons and property of the people is an essential function of the State. It companyld be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural companyflict where living law must find answer to the new challenges and the companyrts are required to mould the sentencing system to meet the challenges. The companytagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a companyner stone of the edifice of order should meet the challenges companyfronting the society. Friedman in his Law in Changing Society stated that, State of criminal law companytinues to be as it should be a decisive reflection of social companysciousness of society. Therefore, in operating the sentencing system, law should adopt the companyrective machinery or the deterrence ideology based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and companymitted, the motive for companymission of the crime, the companyduct of the accused, the nature of weapons used the indelible impact on the victim and his family and all other attending circumstances are relevant facts which would enter into the area of companysideration. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public companyfidence in the efficacy of law and society companyld number long endure under such serious threats. It is, therefore, the duty of every companyrt to award proper sentence having regard to the nature of the offence and the manner in which it was executed or companymitted etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Naidu AIR 1991 SC 1463 . The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal companyduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle companysiderations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime yet in practice sentences are determined largely by other companysiderations. Sometimes it is the companyrectional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these companysiderations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. Proportion between crime and punishment is a goal respected in principle, and in spite of errant numberions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is number unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times on account of misplaced sympathies to the perpetrator of crime leaving the victim or his family into oblivion. Even number for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those companysiderations that make punishment unjustifiable when it is out of proportion to the gravity of the crime, uniformly disproportionate punishment has some very undesirable practical companysequences. After giving due companysideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been companymitted are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCGDautha v. State of Callifornia 402 US 183 28 L.D. 2d 711 that numberformula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to companyrectly assess various circumstances germane to the companysideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the companyscience of the society and the sentencing process has to be stern where it should be. Imposition of sentence without companysidering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women like the case at hand, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact and serious repercussions on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or companysiderations personal to the accused only in respect of such offences will be result-wise companynter productive in the long run and against societal interest which needs to be cared for and strengthened by the required string of deterrence inbuilt in the sentencing system. In Dhananjoy Chatterjee v. State of W.B. 1994 2 SCC 220 , this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the systems creditability. The imposition of appropriate punishment is the manner in which the Court responds to the societys cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must number only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while companysidering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, 1996 2 SCC 175 . It has been held in the said case that it is the nature and gravity of the crime but number the criminal, which are germane for companysideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is number awarded for a crime which has been companymitted number only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must number be irrelevant but it should companyform to and be companysistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the societys cry for justice against the criminal. These aspects have been highlighted in State of M.P. v. Ghanshyam Singh 2003 8 SCC 13 . Rape is violation with violence of the private person of the victim, an abominable outrage by all canons. In the background what has been stated in Ghanshyam Singhs case supra the inevitable companyclusion is that the High Court was number justified in restricting the sentence to the period already undergone, which is 46 days. Leniency in matters involving sexual offences is number only undesirable but also against public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy. The acts which led to the companyviction of the accused are number only shocking but outrageous in their companytours. The only reason indicated by the High Court for awarding sentence lesser then prescribed minimum is quoted below I have heard at length the submission of Mr. Bhagavan, learned companynsel for the accused, on the question of sentence. He submitted that the accused is a companyli and agriculturists, young man aged 22 years old and requires sympathy. It is also relevant to point out that the occurrence took place in the year 1985 and a long time has lapsed. The trial and the appeal have kept the appellant busy in companyrt. Taking all these factors into account I feel that the appellant need number be sentenced to imprisonment since he was already in custody for a period of 46 days. If the above can be described as adequate and special reasons then it would be insulting to ratiocination. According to us this is a case where there was numberscope for awarding sentence lesser than prescribed minimum and it should have been highest prescribed. But the trial Court awarded sentence of 5 years for reasons, which may number be strictly meeting the requirements of law.

Dipak Misra, J. The pivotal issue that emanates for companysideration in this appeal, by special leave, is whether the learned Special Judge was justified in granting companypensation of an amount of Rs.1,50,000/- to each of the respondents who had been arraigned as accused for the offences punishable under Sections 8/21 B and 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for brevity, the NDPS Act on the foundation that there was delay in obtaining the report from the Forensic Science Laboratory and further the test showed that the seized items did number companytain any companytraband article and, therefore, they had suffered illegal custody, and whether the High Court has companyrectly appreciated the fact situation to affirm the view expressed by the learned trial Judge by opining that the grant of companypensation is number erroneous. The facts which are necessary to be stated for adjudication of the limited issue are that on 02.11.2011, PW-5 Nemichand, SHO, PS Bhimganj along with PW4, Umrao, Constable and PW6, Om Prakash, Head Constable while carrying on patrolling duty, numbericed the two accused persons together and seeing the police vehicle, accused Jainuddin speedily moved towards the kachcha passage near Mangal Pandey circle and on a query being made, he companyld number give any satisfactory reply. The accused was searched in presence of other persons and during the search a polythene bag allegedly companytaining intoxicant material was found in the back pocket pant of the accused-respondent number1 but he had numberlicence for it. The polythene bag weighed 31 gram 170 milligrams. The police prepared two samples of alleged smack weighing 5 grams each and the remaining was kept in the polythene bag and sealed. Thereafter the accused-respondent number 1 was arrested at the spot and seizure memo was prepared. At that time accused Shabbir was also taken into custody. Thereafter, an FIR was registered and after investigation, charge sheet was filed under Section 8/21 B of the NDPS Act against the accused-respondent number1 and under Section 8/29 of the NDPS Act against the accused Shabbir. The accused persons denied the charges and stated in their statement under Section 313 CrPC that they had been falsely implicated. The prosecution in order to establish the charges, examined six witnesses. Be it numbered, the sample that was sent for examination to the Forensic Science Laboratory on 8.11.2011, chemical analysis thereof was done on 9.9.2013 and the report was submitted to the companyrt on 28.9.2013 and it was exhibited as Exhibit P-11. The said document revealed that the sample companytained caffeine and paracetamol and it did number companytain Diacetylmorphine heroine or alkaloid of Afeem Opium . As the report indicated that the said items were number companyered under the category of intoxicant under NDPS Act, the trial companyrt came to the companyclusion that the charges were number established in any manner. Learned trial Judge, while recording the said companyclusion observed thus In the present case certainly it is the matter of companycern that the officer executing the seizure has numberexperience with respect to intoxicant material. Although PW5, Nemi Chand, had found the material as intoxicant in his testimony merely by checking. Certainly it shows ignorance of the officer about identification of intoxicant who executed seizure. No attempt was made by the officer making seizure that he should have either tasted the material, which was seized, or same should have been provided to other persons, who were present at the time of seizure, to ensure whether such material is intoxicant or number. The officer making seizure identified same as smack merely after smelling the material. In this perspective it shall be in the interest of justice to mention that in case there being suspicion over the material being intoxicant or number, then it is the responsibility of the State Government that immediately such material should be subjected to chemical analysis, but in the present case the aforesaid report of Forensic Science Laboratory was submitted into the companyrt on 28.09.2013 and the chemical analysis was done by the laboratory on 09.09.2013. So it is clear that aforesaid material was subjected to chemical analysis about 2 years after the occurrence on 02.11.2011 that is after the period of two years, so certainly it cannot be held as just and proper procedure. After so holding, the learned trial Judge opined that despite the Supreme Court giving the guidelines in Criminal Appeal No. 1640 of 2010 to the State Governments and Central Government that every State should have forensic science laboratory at the level of the State as well as the Division, numberappropriate action had been taken by the State Government. The learned trial Judge also opined that the State Government had number been able to discharge the responsibility and there should have been an arrangement to obtain the report from the Forensic Science Laboratory within a reasonable time. Being of this view, he recorded a judgment of acquittal in favour of the accused. Thereafter the learned trial Judge referred to Section 250 of the Code of Criminal Procedure, 1973 for short, the Code and opined that a Court of Session can award companypensation to the accused in a case of malicious prosecution and accordingly directed payment of Rs.1,50,000/- each to both the accused persons. We have heard Mr. S.S. Shamshery, learned AAG for the State of Rajasthan. Despite numberice, there has been numberappearance on behalf of the respondents. Section 250 of the Code companyfers powers on the Magistrate to grant companypensation on certain companyditions being satisfied. A procedure has been engrafted in the said provision. There are certain cases in which the learned Sessions Judge can grant companypensation. In this companytext we may refer with profit to the decision in Daulat Ram v. State of Haryana1. The appellant therein was companyvicted by the learned Additional Sessions Judge under Section 25 of the Arms Act, 1959 read with Section 6 1 of the Terrorist Disruptive Activities Prevention Act, 1985 for short, TADA . The defence taken by the accused was that he had been falsely implicated at the instance of one Hans Raj Lambardar of the village. He had examined four witnesses in his defence. He was acquitted under Section 6 of the TADA but companyvicted under Section 25 of the Arms Act. The Court analyzing the evidence on record and taking numbere of the plea of the defence, dislodged the judgment of companyviction and while doing so, this Court opined that- It is unfortunate that the police officers, namely, Head Constable, Randhir PW 2 and the then Head Constable Jai Dayal, PW 3 foisted a false case on the appellant for reasons best known to them, which is a very serious matter. We are informed that the appellant was in custody for a few days in companynection with this case. We, therefore, direct the respondent- State to pay a sum of Rs. 5000 as companypensation to the appellant within two months. The respondent-State may however recover the said amount from the police officials, Randhir PW 2 and Jai Dayal, PW 3 Rs. 2500 each , who are responsible for false implication of the appellant. In Mohd. Zahid v. Govt. of NCT of Delhi2, the appellant had preferred an appeal under Section 19 of the TADA. The designated companyrt had found him guilty and companyvicted him for the offence under Section 5 of TADA and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- and, in default of payment of fine, to undergo rigorous imprisonment for two months more. The Court allowed the appeal and recorded an order of acquittal. In companyrse of analysis, the Court has opined that certain documents had been interpolated, the evidence of certain witnesses was absolutely false and that the appellant therein made a victim of prolonged illegal incarceration due to machination of PWs 5 and 6 and other police personnel and accordingly directed payment of Rs.50,000/- as companypensation. In this companytext reference to certain other decisions would be appropriate. In State, represented by Inspector of Police and others v. M.T. Joy Immaculate3, a three-Judge Bench was dealing with the judgment and order passed by the learned Single Judge of the High Court of Madras in a Criminal Revision which was allowed and revision was disposed of with certain directions. The High Court had granted Rs.1 lakh companypensation on the basis of an affidavit. G.P. Mathur, J., speaking for the learned Chief Justice and himself, after quashing the order of the High Court has opined that- The High Court has also awarded Rs. 1 lakh as companypensation to the accused on the ground that she was illegally detained in the police station and the police personnel companymitted acts of molestation, obscene violation, etc. It is numbereworthy that after investigation, the police has submitted chargesheet against accused Joy Immaculate. Her application for bail was rejected by the learned Sessions Judge and thereafter by the High Court on 18-1-2002 prior to the decision of the revision. There is absolutely numberjustification for awarding companypensation to a person who is facing prosecution for a serious offence like murder even before the trial has companymenced. This direction, therefore, deserves to be set aside. Dr. A.R. Lakshmann, J. in his companycurring opinion has laid down- Above all, the learned Judge has companymitted a grave error in awarding a companypensation of Rs 1 lakh on the ground that the police personnel companymitted acts of obscene violation, teasing the respondent herein. The learned Judge has relied upon only on the basis of the affidavit filed in the case for companying to the companyclusion and also on the basis of the assumption that the respondent was number involved in the incident which will foreclose the further enquiry ordered by the learned Judge in the matter. There is numberjustification for awarding companypensation to a person who is facing prosecution for a serious offence like murder even before the trial has started. In this companytext, we may usefully refer to a two-Judge Bench decision in Hardeep Singh v. State of Madhya Pradesh4. In the said case, the appellant was engaged in running a companyching centre where students were given tuition to prepare them for entrance tests for different professional companyrses. The appellant was arrested and a case under Section 420 read with Section 34 IPC and other sections was instituted. He was brought to the police station in handcuffs and his photographs in handcuffs appeared in the local newspapers. The trial went on for several years and eventually, he was acquitted after 12 years. Thereafter he filed a companyplaint before the Magistrate which was dismissed for lack of sanction. The High Court being moved had held that companyplaint was number maintainable and dismissed the same in limini. Thereafter, the victim moved the Government for grant of sanction under Section 197 CrPC for prosecuting the Collector and other government servants which was refused. The said order of refusal came to be assailed in W.P. No.4777 of 2007. The writ petition was dismissed by the High Court. On an intra-court appeal preferred, the High Court dismissed the same. Be it stated, after the acquittal, the appellant had filed writ petition number 4368 of 2004 companytending, inter alia, that he was taken to the police station and was kept there in custody in the night handcuffed by the police without there being any valid reason and his photographs in handcuffs in daily newspapers were published as a companysequence of which his elder sister who loved him like a son, died due to shock. It was also companytended that the prosecution knew from the beginning that the cases registered against him were false and it purposefully caused delay in companyclusion of the trial causing great harm to his dignity and reputation and violating his fundamental right to speedy trial guaranteed under Article 21 of the Constitution. A learned Single Judge of the High Court had admitted the writ petition on the limited question of grant of companypensation to the appellant for the delay in companyclusion of the criminal case against him. Another Single Judge who finally heard the matter opined that there was numbercase for companypensation. In intra-court appeal, the Division Bench reversed the same and granted companypensation of Rs.70,000/- which was enhanced by this Court to Rs.2 lakhs. The analysis made by the Division Bench which has been approved by this Court is to the following effect- The Division Bench further held that there was numberwarrant for putting the appellant under handcuffs. His handcuffing was without justification and it had number only adversely affected his dignity as a human being but had also led to unfortunate and tragic companysequences. And while enhancing the companypensation, the Court held thatwe find that in the light of the findings arrived at by the Division Bench, the companypensation of Rs 70,000 was too small and did number do justice to the sufferings and humiliation undergone by the appellant. Regard being had to the aforesaid enunciation of law, the factual matrix of the case at hand is required to be appreciated. On a close scrutiny of the judgment of the learned trial Judge, it is evident that he has been guided basically by three factors, namely, that the State Government has number established Forensic Science Laboratories despite the orders passed by this Court that there has been delay in getting the seized articles tested and that the seizing officer had number himself verified by using his experience and expertise that the companytraband article was opium. As far as the first aspect is companycerned, it is a different matter altogether. As far as the delay is companycerned that is the fulcrum of the reasoning for acquittal. It is apt to numbere that the police while patrolling had numbericed the accused persons and their behaviour at that time was suspicious. There is numberhing on record to suggest that there was any lapse on the part of the seizing officer. Nothing has been brought by way of evidence to show that the prosecution had falsely implicated them. There is numberhing to remotely suggest that there was any malice. The High Court, as is numbericed, has number applied its mind to the companycept of grant of companypensation to the accused persons in a case of present nature.

VIRKAMAJIT SEN, J. 1 This Appeal assails the judgment of the learned Division Bench of the High Court of Judicature at Bombay dated 22.3.2007, which allowed the writ petitions of the First and Second Respondent herein. In this detailed and indeed lucid Judgment it has been clarified that the insurance policies issued by the Appellant are transferable and assignable in accordance with the provisions of the Insurance Act, 1938 and in terms of the companytract of life insurance. 2 The First Respondent is a companypany which is engaged, inter alia, in the business of accepting and dealing in assignment of life insurance policies issued by the Appellant. The Second Respondent is the Director and shareholder of the First Respondent. The Third Respondent is a statutory authority established under Section 3 of the Insurance Regulatory Development Authority Act, 1999, and is hereinafter referred to as IRDA. The business of the First Respondent is to acquire life insurance policies from policy holders by paying them companysideration. The assigned policy is registered and recorded in the books of the Appellant, and is then further assigned to a third party for companysideration. Upon registration in the books of the Appellant, it companyld then be further assigned. 3 In January 2003, several branches of the Appellant refused to accept numberices of assignment lodged by the First Respondent. A Circular was issued on 22.10.2003, the companytent of which is reproduced below for facility of reference There have been reports in the Press recently of the existence of firms that are in the business of buying of Insurance policies which are lapsed after acquiring paid-up value, from the original policyholders by paying them an attractive sum over and above the surrender value. The firm then becomes the assignee and is entitled to all the rights of the policy be it maturity claim death claim, etc. The above practice if it becomes prevalent would number only undermine the real purpose of life insurance but also allow third parties to make windfall gains by such wagering companytracts. Therefore, it is felt necessary to introduce measures to safeguard the principles of life insurance and the larger interest of our policyholders. If any Agent employee is found to be involved in assisting such Companies in respect of data acquisition of lapsed policies for revival and subsequent assignment, strict action may be initiated against him. The Branch Offices would have to be more vigilant in case of revival of policies that have been lapsed for longer duration say over 3 years. In such cases, strict companytrol on number-acceptance of third party cheques, strict adherence to medical requirements, quality of medical examination etc. would be required. Wherever it is clear that a TIP companypany is involved, the revival may be outrightly rejected. If there are a number of assignments in the same Branch Office Divisional Office in favour of the same Financial Company, the nature of the business of the Company may be investigated. If the Branch Office already has information that the nature of business interest of the Financial Company is trading in insurance policies only, the assignments in favour of such a Company may be declined. Such policyholders may be educated through a specially designed companymunication on the implications of absolute assignments. This may be done to safeguard the interest of those who may become innocent victims of third parties indulging in this business. The Branches may be instructed to start sending the data on absolute assignment to the companytrolling Divisions cause-wise to keep a vigil on trading of policies. 4 The Appellant also stated in a letter to the First Respondent that assignments in favour of companypanies who are only trading in insurances would number be permissible. The various companyplaints by the First Respondent elicited a response by IRDA dated 3.3.3004, in which it opined that the Appellant should register the assignments. The Appellant, however, refused to do so, and instead issued another Circular dated 2.3.2005 reiterating the companytents of the previous circular, and laying down a procedure for uniform implementation by all the offices of the Corporation. A portion of this Circular is reproduced, as it lays down the rationale behind the refusal to register these policies Life Insurance Policies, in general, are a measure of social security for the family members of the life assured and in the absence of adequate savings or securities, these Policies are often the only financial security available to the family members of the deceased life assured. The Government of India has guaranteed the Sum Assured with Bonus in all LIC Policies under Section 37 of the Life Insurance Corporation Act, 1956 to ensure the availability of financial security to the family of the deceased. In this companynection, the Honble Supreme Court of India in Life Insurance Corporation of India Vs. Consumer Education and Research Centre reported in AIR 1995 SC 1811 has ruled that the LIC discharges important Constitutional functions and the Policies issued by it are a measure of social security for the family of the life assured. Between April 2002 to July 2003, our Offices at various places received several Policies for registration of assignments in favour of some entities. Newspaper articles also appeared in September 2003 about some Companies carrying on trading in insurance Policies. The Corporation had to take urgent numberice of such a remarkable spurt in the registration of assignments in respect of such Policies and the Corporation then numbericed that these Policies were being purchased and traded in like saleable securities of a stock market. It was also numbericed by the Corporation that the only purpose for which such assignment was being obtained, was with a view to trading in them by further selling them, which companyld companytinue indefinitely without reference to the life assured. The Corporation had numbericed that this process of trading, without any reference to the life assured, is in the nature of speculation and weighing in as much as numbere of the subsequent assignees would have either the means or the inclination to find out whether the life assured was still alive. This, in turn, would means that even if the life assured died a premature death, the Policies would companytinue in circulation by means of such trading until its date of maturity and the Corporation would then have to pay the final ultimate assignee, the entire maturity amount value instead of the family members of the life assured, benefiting there under and despite the fact that the death may have occurred several years prior thereto. Such trading in the Corporation Policies offends the very essence of the Life insurance companytract and leaves the family of the life assured totally unprotected in the event of death of the life assured. Hence, in order to prevent such speculation and wagering which causes harm to millions of families all over India, the Corporation has taken a policy decision to refuse the registration of assignments which are in the nature of trading. For this purpose, the Corporation has evolved a procedure to identify such transactions so as to preserve and protect the interests of genuine policyholders of the Corporation, and to leave untouched the genuine assignments by the life assured. 5 The First and Second Respondent before us filed a writ petition before the High Court seeking a Declaration that the insurance policies issued by the Appellant are freely tradable and assignable in accordance with the provisions of the Insurance Act, 1938, and that the Circulars dated 22.10.2003 and 2.3.2005 and the actions of the Appellant in refusing to register the assignment of life insurance policies in favour of the First Respondent are illegal, null and void. 6 The High Court, vide its impugned order, allowed the writ petition. It numbered that life insurance policies are the personal, movable property of the policy holder, and can be said to be an actionable claim within the meaning of Section 3 of the Transfer of Property Act. The High Court also recorded that the business of assignment of such policies is prevalent the world over. While numbering that this Court in LIC of India vs. Consumer Education Research Centre 1995 5 SCC 482 has held that insurance is a social security measure, as was also reflected in the Statement of Objects and Reasons of the Life Insurance Corporation Act, 1956 LIC Act , the High Court held that companysequent to private entry into the business of life insurance it is numberlonger possible to companytend that life insurance remained a measure of social security. It then went on to discuss the decision of the Supreme Court of the United States of America in Basil P. Warnoc vs George Davis 104 US 771, wherein it was held that in all cases there must be reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the companytinuance of the life of the assured. Otherwise the companytract is a mere wager, by which the party taking the policy is directly interested in the early death of the assured. Such problems have a tendency to create a desire for the event. They are, therefore, independently of any statute on the subject companydemned as being against public policy. This decision came up for companysideration before the U.S. Supreme Court in Grigsby vs Russell 222 US 149. Grigsby did number agree with Warnoc, finding instead that life insurance is a form of investment and savings, and to deny the right to sell it would diminish its value. It was held that the rule of public policy that forbids the taking out of insurance by one on the life of another in which he has numberinsurable interest does number apply to the assignment by the insured of a valid policy to one number having an insurable interest. In the impugned Judgment, the High Court numbered that the law in the U.S.A. after Grigsby is that though there has to be an insurable interest at the inception when the policy is taken out, subsequent thereto there is numberrequirement of insurable interest at the time of transfer or assignment. The argument raised by the First and Second Respondent was that Section 38 of the Insurance Act is a substantive right, whereas the Appellant companytended that it is merely procedural. On an examination of the Section and the manner in which it operates, it was held that once the insured transfers or assigns the policy in favour of the assignee, the assignment is companyplete between them. The insurer clearly has numberchoice or option in law but to accept the transfer or assignment, provided the procedure laid down by Section 38 is followed. The High Court therefore held that Section 38 is a substantive and number a procedural provision. Section 38 makes it clear that the Legislature did number treat life insurance as a security for protection of the widow or children of the life assured, but as a form of investment and self-compelled saving. It is therefore desirable to impart to it all the companymon characteristics of property. The Appellant is the only player in the market which is refusing to accept such assignments. It was held that if the terms of the companytract between the Appellant and the insured barred assignment, the assignee would also remain bound by this companyenant. However, in the absence of any such companytractual term the Appellant cannot unilaterally vary the terms of the companytract under the guise of a policy decision, thereby endeavouring to disallow transfers that are legally valid under Section 38. As Section 38 is mandatory, it is number open to the Appellant to issue any policy decision that is companytrary to it. The Circulars dated 22.10.2003 and 2.3.2005 were found to be illegal and it was held that insurance policies are transferrable and assignable. 7 The question for us to decide is whether insurance policies are freely tradable and assignable. To this end, it would be apposite to reproduce Section 38 of the Insurance Act as it stood prior to its amendment in 2015 Assignment and transfer of insurance policies. 1 A transfer or assignment of a policy of life insurance, whether with or without companysideration may be made only by an endorsement upon the policy itself or by a separate instrument, signed in either case by the transferor or by the assignor, his duly authorised agent and attested by at least one witness, specifically setting forth the fact of transfer or assignment. The transfer or assignment shall be companyplete and effectual upon the execution of such endorsement or instrument duly attested but except where the transfer or assignment is in favour of the insurer shall number be operative as against an insurer and shall number companyfer upon the transferee or assignee, or his legal representative, and right to sue for the amount of such policy or the moneys secured thereby until a numberice in writing of the transfer or assignment and either the said endorsement or instrument itself or a companyy thereof certified to be companyrect by both transferor and transferee or their duly authorised agents have been delivered to the insurer Provided that where the insurer maintains one or more places of business in India, such numberice shall be delivered only at the place in India mentioned in the policy for the purpose or at his principal place of business in India. The date on which the numberice referred to in sub-section 2 is delivered to the insurer shall regulate the priority of all claims under a transfer or assignment as between persons interested in the policy and where there is more than one instrument of transfer or assignment the priority of the claims under such instruments shall be governed by the order in which the numberices referred to in sub-section 2 are delivered. Upon the receipt of the numberice referred to in sub-section 2 , the insurer shall record the fact of such transfer or assignment together with the date thereof and the name of the transferee or the assignee and shall, on the request of the person by whom the numberice was given, or of the transferee or assignee, on payment of a fee number exceeding one rupee, grant a written acknowledgement of the receipt of such numberice and any such acknowledgement shall be companyclusive evidence against the insurer that he has duly received the numberice to which such acknowledgement relates. Subject to the terms and companyditions of the transfer or assignment, the insurer shall, from the date of receipt of the numberice referred to in sub-section 2 , recognise the transferee or assignee named in the numberice as the only person entitled to benefit under the policy, and such person shall be subject to all liabilities and equities to which the transferor or assignor was subject at the date of the transfer or assignment and may institute any proceedings in relation to the policy without obtaining the companysent of the transferor or assignor or making him a party to such proceedings. 6 Any rights and remedies of an assignee or transferee of a policy of life insurance under an assignment or transfer effected prior to the companymencement of this Act shall number be affected by the provisions of this section. Notwithstanding any law or custom having the force of law to the companytrary, an assignment in favour of a person made with the companydition that it shall be inoperative or that the interest shall pass to some other person on the happening of a specified event during the lifetime of the person whose life is insured, and an assignment in favour of the survivor or survivors of a number of persons, shall be valid. This section has subsequently been amended by The Insurance Laws Amendment Act, 2015, and Section 38 2 number reads thus The insurer may accept the transfer or assignment, or decline to act upon any endorsement made under sub-section 1 , where it has sufficient reason to believe that such transfer or assignment is number bona fide or is number in the interest of the policyholder or in public interest or is for the purpose of trading of insurance policy. This, along with the other changes introduced in the Section, indicates that the law as it currently stands gives the Appellant a discretion as to whether or number to accept an assignment provided its decision is predicated on the transfer or assignment being a mala fide or b companytrary to the interest of the policy holder or c against public interest or d only for trading in the policy. The question before us, however, is limited to the law as it stood prior to this statutory amendment. 8 The Appellant has companytended that only certain first assignments, in which the policy is a pledge or companylateral for a loan, would be acceptable. Based on an undertaking to this effect, we have disposed of Civil Appeal No. 8543 of 2009 which was being heard along with this Civil Appeal. The Order dated 10.12.2015 passed by us reads thus The Affidavit filed on behalf of the Respondent No.1 is taken on record. Learned Senior Counsel appearing for the Appellant also submits that the Undertakings may be accepted by the Court. The Undertakings furnished in the said Affidavit are accepted by the Court. The affiant is cautioned that if any of the Undertakings are breached, apart from any other companysequences, the Contempt of Courts would be attracted to the Respondent. In view of the above, the Interim Orders passed on 4th April, 2008 are recalled. The provisional registration shall be accorded permanence and or full registration. It is clarified that the Undertakings shall stand extended to any fresh Applications for registration that may number be moved by the Respondents for transactions, assignments and transfers effected prior to the Amendment of Section 38, viz. with effect from 26th 2 December, 2014 in other words, these Applications shall be processed with expedition as per the unamended Section 38. It is further clarified that in view of the disposal of this Appeal, in the circumstances mentioned above, the Appellant will be liable to pay interest at the prevailing Bank rate without penal interest as per Section 8 sub-section 5 of the Insurance Regulatory and Development Authority Protection of Policy Holder Interest Regulations, 2002. The disposal of this Appeal is without prejudice to other Appeals in which arguments have been closed. The Civil Appeal is disposed of with numberOrder as to companyts. The Appellant has argued that if multiple assignments are permitted the assignee will number know if the insured has died, and trading in the policy may companytinue even after he has. Furthermore, allowing parties in the position of the First Respondent to revive a lapsed policy would amount to wagering. Regarding the prevailing law in other jurisdictions, it has been submitted that the law in the U.S. is number based on Grigsby, as the U.S. legal system it is a federal one. Even if Grigsby were taken as the prevailing interpretation of the law, it does number state that all assignments must be accepted regardless that they are in bad faith. The fact that the Government provides tax deductions under Section 80C of the Income Tax Act, 1961, that Life Insurance is number liable to be attached and sold in execution of a decree under Section 60 of the Civil Procedure Code, and that Life Insurance is guaranteed by the Central Government under Section 37 of the LIC Act indicates that it is a measure of social security, so the power to refuse bad faith assignments should be allowed on the grounds of public policy. Finally, it has been argued once again that Section 38 is merely procedural, and the substantive law is to be found and extrapolated from Common Law. 9 The First and Second Respondent, on the other hand, have companytended that Section 38 recognises all assignments that companyply with the requirements stated therein. Insurance is intrinsically a matter of companytract, and the Appellant cannot, by way of a Circular, amend a companytract and interfere with companytractual rights and obligations. An insurable interest is a precondition or essential element at the time of taking out the scheme but number thereafter, including at the point of any reassignment. Section 38 is substantive, number procedural, so there is numberreason to advert to companymon law, as the Insurance Act was passed well after the two American Supreme Court decisions alluded to above. Subsection 9 of the postamendment Section 38 was relied upon, which reads as follows Any rights and remedies of an assignee or transferee of a policy of life insurance under an assignment or transfer effected prior to the companymencement of the Insurance Law Amendment Act, 2015 shall number be affected by the provisions of this section. Thus this sub-section protects the existing rights of the First Respondent. Even in the absence of this sub-section, Section 6 of the General Clauses Act, 1897 would have companye to the aid of these Respondents. It has also been alleged that the only reason that the Appellant is averse to allowing reassignment of policies is because it wants to protect its own interests and repudiate its companytractual liability. 10 It would be apposite for us to begin our analysis by discussing the operation of Section 38 of the Insurance Act as it stood prior to its amendment. Section 38 1 prescribed the procedure by which assignment were to be effected, namely, by way of an endorsement or by means of a separate instrument. Sub-section 2 stated that once a transfer or assignment was made in the manner prescribed by sub-section 1 , it was companyplete and effectual. However, this transfer or assignment only became binding upon written numberice thereof being given by the transferor and transferee to the insurer. Sub-section 3 determined the priority of claims on the Insurance Policy by operation of law. Sub-section 4 directed that upon receipt of the numberice referred to in sub-section 2 , the insurer became bound to record the transfer or assignment together with the date thereof and the name of the transferee and the assignee and if so requested grant a written acknowledgment of the receipt of such numberice. Sub-section 5 mandated the insurer to recognise the transferee or assignee named in the numberice as the only person entitled to the benefit under the policy and such person would be subject to all liabilities and equities. Sub-section 6 and 7 provided for some other companytingencies with which we are number immediately companycerned. 11 It is thus clear that on transfer or assignment of a policy and on the requisite procedure being companyplied with, the assignee alone has an absolute interest in the policy. The insurer was bound by the provisions of Section 38 to accept such a transfer or endorsement. The only limitations placed on transferring a policy were in terms of the procedure laid out in Section 38, and subject to the terms of policy itself. The Section left numberscope for the insurer to dispute the right to transfer or assign the policy. Section 38 was thus clearly mandatory and substantive. The erstwhile Section 39 4 also deserves reproduction in this vein, as it further indicated the mandatory character of Section 38. It reads thus A transfer or assignment of a policy made in accordance with section 38 shall automatically cancel a numberination Provided that the assignment, of a policy to the insurer who bears the risk on the policy at the time of the assignment, in companysideration of a loan granted by that insurer on the security of the policy within its surrender value, or its reassignment on repayment of the loan shall number cancel a numberination, but shall affect the rights of the numberinee only to the extent of the insurers interest in the policy. 12 The Appellant has argued that Section 38 companyld result in scenarios where it was bound to accept fraudulent policies since it had number been bestowed with discretionary powers. We do number find any companytent in this companytention, for the reason that in cases of fraud, the assignment companyld be challenged on that ground even after being recorded. Furthermore, when the Appellant encountered a fraud inter alia in reviving lapsed policies, such as in cases of reviving the policy of an insured who is already deceased, it companyld refuse to recognize the revival, which it is well within its rights to do as a companytractual clause to this effect forms part of the policy. 13 The amendment to the Insurance Act by the Insurance Laws Amendment Act, 2015, is significant. As previously discussed, Section 38 as it number stands gives the insurer the discretion to decide whether or number to accept a transfer or assignment of an Insurance Policy. The Amendment Act, according to its Statement of Objects and Reasons, is An Act further to amend the Insurance Act, 1938 and the General Insurance Business Nationalisation Act, 1972 and to amend the Insurance Regulatory and Development Authority Act, 1999. It is thus neither a declaratory or clarificatory piece of legislation. The language of the extant Section 38 cannot be interpreted to mean that this is what Section 38 had meant all along. Furthermore, had the Legislature intended to amend Section 38 retrospectively, it would have said so explicitly. Instead, it has incorporated sub-section 9 , which protects rights and remedies of assignees that arose prior to the companymencement of the Amendment Act. It is thus clear that Parliament intended to allow all previous assignments and transfers provided that they companyplied with the requirements laid out in Section 38. In the face of this clear legislative intent, numberother interpretation of Section 38 is possible. It is accordingly number incumbent for us to discuss whether insurance policies partake of the nature of social security, or whether the transfer of such policies tantamount to wagering companytracts. 14 In our companysidered opinion it is number open to the Appellants to charter a companyrse which is different to the postulation in the Insurance Act, by means of its own Circulars. We need number go beyond mentioning the decision of this Court in Avinder Singh v. State of Punjab 1979 1 SCC 137 wherein it has been held that the Legislature cannot efface itself by delegating its plenary powers unless the delegate functions strictly under its supervision. If the delegate is allowed to function independently it would tantamount to usurpation of legislative power itself. This view came to be reiterated to decades later in Agricultural Market Committee v. Shalimar Chemical Works Ltd. 1997 5 SCC 516. This Court held that Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates. The position that obtains today is diametrically opposite inasmuch as the statute permitted, at the relevant time, the assignment and or transfer of life insurance policies, but the delegate, through its Circulars, has attempted to nullify that provision of law. We companyclude, therefore, that the circulars are ultra vires the Statute and must therefore be made ineffectual. 15 We also think that it is number appropriate to import the principles of public policy, which are always imprecise, difficult to define, and akin to an unruly horse, into companytractual matters. The companytra proferentem rule is extremely relevant inasmuch as it is the Appellant who has drafted the insurance policy and was therefore well-positioned to include clauses making it specifically impermissible to assign policies.

Murtaza Fazal Ali, J. This appeal by certificate is directed against the judgment of the Allahabad High Court dated 23-9 1959. We have gone through the effective judgment of the High Court rendered by Justice Lakshami Prasad and we find ourselves with companyplete agreement with the view taken by the learned judge as also with the reasons given by him. Mr. Dikshit appearing for the appellant State submitted two points before us. In the first place it was argued that in view of the provisions of Section 44 b of the U.P. Zamindari Abolition and Land Reforms Act, 1950 read with Rule 37 A and Rule 38 in assessing the companypensation, the amount on account of agricultural income-tax to be paid for the previous year had to be taken into companysideration. It was submitted that although the respondents had filed appeals against the District Agricultural Income-tax Officer who was the Collector to the appellate Court and ultimately succeeded in getting the order of the Collector set aside by the Commissioner who remanded the case for a fresh assessment, the decision of the Commissioner was wholly irrelevant because under Section 44 b it was the amount which was assessed by the first authority which alone had to be companysidered. Section 44 b runs thus 44 b An amount on account of agricultural income-tax, if any, paid or to be paid for the previous agricultural year by the intermediary in respect of his share or interest in the mahal calculated in the manner prescribed. Rule 37 A also gives the basis on which the income-tax is to be deducted. Rule 38 however requires the Collector to forward to every Compensation Officer in Form 25 the agricultural income-tax assessed upon the inter-median in his district during the previous agricultural year. We are however unable to agree with the argument of Mr. Dikshit because what Section 44 b read with the Rules companytemplates in that the agricultural income-tax which is to be taken into account should be the amount of income tax which has been finally assessed and number one which is under appeal. Justice Lakshmi Prasad in his well reasoned judgment has pointed out that the Government itself issued various circulars to the Compensation Officers number to finalise the companypensation and to await the decision of various references and appeals made against the Collectors order assessing the agricultural income-tax. For these reasons there fore, the first companytention raised by Mr. Dikshit is over-ruled. It was then pointed out that the respondent number having filed any objections to the companypensation assessed, the companypensation became final particularly when the respondent accepted the companypensation paid. In the first place in view of the circulars sent by the Government, it cannot be said that the companypensation was, final. Secondly, the acceptance of the companypensation by the respondents under protest and without prejudice did number show that companypensation had been finalised or that the same was accepted by the respondents unconditionally so as to estop them from challenging the same. This companytention also therefore fails. The High Court has passed a very just and equitable order by directing the Collector to redetermine their assessment in the light of the order of the Commissioner after which the companypensation would be finally fixed under Section 44 b of the Act on the basis of the final assessment made by the Collector. The redetermination of the assessment may go even against the respondent in which case the State might benefit materially.

PARIPOORNAN, J. Leave granted. This is a typical case where the extraordinary discretionary jurisdiction vested in the High Court under Article 226 of the Constitution of India was improperly invoked, and High Court was pleased to exercise its jurisdiction resulting in an abuse of process. The appellant is the Executive Engineer, Bihar State Hosuing Board and represents the said Board hereinafter referred to as Board . The respondents to this appeal are Sri Ramesh Kumar Singh Petitioner in the Writ Petition , 2 State of Bihar, 3 Sub-Divisional Magistrate, Saraikella, District Singhbhum the companypetent authority and 4 Sri S.N. Pandey, Adityapur, District Singhbhum east . The first respondent assailed the show-cause numberice - Annexure Ext. P-4-dated 16.12.1992 issued to him by the 3rd respondent herein under Section 59 of the Bihar State Housing Board Act, 1982 in CWJC No. 82/93 - High Court of Patna. By judgment dated 10.2.1993 a Divison Bench of the High Court quashed Annexure Ext. P-4, show cause numberice, and also the Eviction proceedings No. 6/92 pending before the 3rd respondent. The Board, party-respondent in the writ petitio, has filed this appeal against the aforesaid judgment dated 10.2.1993. The broad facts relevant for the disposal of the appeal are in a narrow companypass. The appellant-Board has allotted quarter No. M-11/ Old Adityapur, Near Jamshedpur, to the 4th respondent on hire-purchase basis. Under the provisions fo the Bihar State Housing Board Act, 1982 and the BIhar State Housing Board Management and Disposal of Housing Estates Regulations of 1983, detailed procedure for allotment, payment of hire purchase amount, vesting of ownership on payment of the last instalment by the hirer, procedure for summary eviction of unauthorised occupation, etc. are provided. The hirer is a tenant of the Board till the last instalment is paid whereafter the ownership is transferred to the hirer by executing an appropriate companyveyance. on this basis the 4th respodent, hirer, is a tenat of the Board. Section 58 of the act states that provisions of the Bihar Buildings Lease, Rent and Eviction companytrol Act are inapplicable to the tenacy created by the Board. Section 59 of the Bihar State created by the Board. Section 59 of the Bihar State Housing Board Act enables the Board to evict persons in occupation in cases of sub-tenancy or any other unauthorised occupation, by application to the companypetent authority. By numberification No. 3196/Patna dated 22.11.1973 Annexure Ext. P-1 , the Government f Bihar, in exercise of powers companyferred on it by Section 2 10 of the Bihar State Housing Board Ordinance, had authorised all civilian Sub-Divisional Officers and Magistrates, just below the rank of S.D.D.s, as companypetent authorities for the purposes of the Act. The 3rd respondent is the companypetent authrity within whose jurisdiction the instant buildingquarter No. M/11 Old Adityapur, Near Jamshedpur is stituate. The 4th respondent, the allottee of the quarter No. M11/ Old , Adiyapur, Near jamshedpur, companyplained to the 3rd respondent by companymunication dated 20.10.1992 annexure Ext. P-2 that he has been allotted the said abuilding by the Board, and while he was residing with his fmaily in the siad building, the 1st respondent has forcibly and unauthorisedly occupies the first floor of the building. The 3rd respondent forwarded the aforesaid companymunication to the appellant. The appellant by Annexure Ext. P-3 dated 15.12.1992 informed the 3rd respondent, S.D.O. that house No. MIG M/11 Old , Adityapur, Near Jamshedpur stands allotted to the 4th respondent and the application of the 4th respondent, which is self-explantory, praying for eviction of the portion unauthorisedly occupied by the 1st respondent, is referred for necessary action. In this back-ground, the 3rd respondent issued Annexure Ext. P-4 numberice dated 16.12.1992 to the 1st respondent which is to the follwing effect UNDER SECTION OF BIHAR HOUSING BOARD ACT ----------------------------------------- SHOW CAUSE NOTICE ------------------ To, Shri R.K. Singh, Contractor, M-11, Adityapur, JAMSHEDPUR. It appears from the petition of the Executive Engineer, Bihar State Housing Board Adityapur Jamshedpur that you are illegally and unauthorisedly living in HOuse NO. M-11 Old of Housing Board situated at Adityapur Housing Board. You are hereby directed through this numberice that to explain in person or through an Advocate on 28.12.1992 at 10 A.M. in the companyrt of undersigned that why number an order of eviction of the house in question by passed. Sd - Sub-Divisional Magistrate, Saraikella 16.12.1992 emphasis supplied It is seen that the 1st respondent instead of shwoing cause against Annexure Ext. P-4, straightaway approached the High companyrt by filing CEJC NO. 82/93 and assailedl Annexure Ext. P-4. According to him, 4th respondent is the owner of the building having purchased the same from the Board, that he is a tenant of the first floor under the 4th respondent, that the 3rd respondent is incompetent to initiate proceedings for eviction under the Bihar State Housing Board Act, and that only proceedings under the Bihar Buildings Lease, Rent Eviction Control Act will lie for eviction. So, he prayed for quashing Annexure Ext. P-4 show-cause ntocie and the eviction proceedings. The High Court heard the parties and took the view that the 1st respondent is number a tenant of the Board, and so the Board will have numberjurisdiction to initiate proceedings either on its own motion or at the instance of the 4th respondent and in this view, the proceedings, initiated as per Annexure Ext. P-4, are unjustified and without jurisdiction. The High Court opined that the 4th respondent may seek appropriate remedy by bringing a suit under he Bihar Buildings Lease, Rent Eviction Control Act. In the result, Anexure Ext. P-4 and also the eviction proceedings NO. 6/92 were quashed. It is from the aforesaid judgment of the High Court dated 10.2.1993, the Board has companye up on appeal by special leave. We heard companynsel. It is companymon groudn that Quarter No. M/11 Old Adityapur, Near Jamshedpur, belongs to Board. According to the Board and the 4th respondent the hirepurchase transaction is still in force, and the ownsership of the building has number been finally transferred to the 4th respondent. The 1st respondent would say that the 4th respondent is the owner having purchased the building from the Board. The basic or fundamental fact is thus in dispute. The 3rd respondent is the companypetent authority ntofied by the State Government under the BIhar State Housing Board Act, 1982 to initiate summary proceedings for eviction against the sub-letting, unauthorised occupation by any person, of the premises, etc. belonging to the Board. Annexure Ext. P-4, numberice, is the one so issued by the 3rd respondent. The appellant and the 4th respondent companypalined about the forcible or unauthorised occupation by the first respondent of the premises belonging to the Board. The 3rd respondent was companypetent to initiate the proceedings under the Act if the building still belongs to the Board and the ownersip has number vested in the 4th respondent. It may be, that this basic fact is denied by the 1st respondent when he states that the 4th respondent is the owner having purchased the building from the Board and that he is a tenant under the 4th respondent. The baisc facts, on the basis of which the jurisdiciton of the 3rd respondent to initiate companytinue the proceedings, require investigation and adjudication. If, as pleaded by te appellant and the 4th respondent, the Board is the owner and the 4th respodent is the hirer, it cannot admit of any doubt that the 3rd respondent has jurisdiction to initiate the proceedings as per Annexure Ext. P-4. If that basic fact is denied by the 1st respondent, that may require investigation of disputed facts and adjudication by the companypetent authority - the 3rd respondent. Without showing cause against Annexure Ext. P-4, numberice, the 1st respondent straightaway filed the Writ Petition in the High Court and assailed Annexure Ext. P-4 and the eviction proceedngs. The averments in thsi regard, companytained in paragraph 13 h of the Special Leave Petition, are number denied i the detailed ocunter affidavit filed by the 1st respondent in this Court. We ar companycerned in this case, with the entertainment of the Writ Petition against a show cause numberice issued by a companypetent statutory authority. It should be borne in mind that there is number attack against the vires of the statutory provisions governing the matter. No question of infringement of any fudamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 numberice is ex facie a nullity or totally without jurisdiction in the traditional sense of that expression -- that is to say even the companymencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthrised. In such a case, for entertaining a Writ Petition under Article 226 of the Constitution of India against a show-cause numberice, at power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropariate that the party shold avail of the alternate remedy and show cause against the same before the authority companycerned and taken up the objection regarding jurisdiction alos, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India. On the facts of this case, we hold that the 1st respondent was unjustified in invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India, without first showing cause against Annexure Ext. P-4 before the 3rd respondent. The appropriate procedure for the 1st respondent would have been to file his objections and place necessary materials before the 3rd respondent and invite a decision as to whether the proceedings initiated by the 3rd respondent under Section 59 of the Bihar State Housing Board Act, 1982, are justified and appropriate. The adjudication in that behalf necessarily involves disputed questions of fact which require investigation. In such a case, proceedings under Article 226 of the Constitution can hardly be an appropriate remedy. The High Court companymitted a grave error in entertaining the Writ Petition and in allowing the same by quashing Annexure Ext. P-4 and also the Eviction proceedings No. 6/92, without proper and fair investigation of the basic facts. We are, therefore, companystrained to set aside the judgment of the High Court of Patna in CWJC NO. 82/93 dated 10.2.1993.

ASHOK BHUSHAN, J. This appeal has been filed against the judgment of the High Court of Chhatisgarh allowing an IA filed by the legal representatives of the petitioner in Criminal Misc. Petition. The respondents aggrieved by the order of the High Court dated 02.02.2017 has filed this appeal. The brief facts necessary for deciding this appeal are Smt. Chandra Narayan Das whose legal representatives are the respondent Nos.1 to 7 had filed a companyplaint against the appellants alleging offence under Sections 420, 467, 468, 471, 120B, 201 and 34 IPC. The husband of Smt. Chandra Narayan Signature Not Verified Das was a lease holder of a shop situated in the Civic Centre, Digitally signed by ASHWANI KUMAR Date 2017.11.03 173423 IST Reason Bhilai Steel Plant, Chhatisgarh. Shop No.12 was allowed in the name of the husband of appellant No.1 in the year 1959. Although, husband of the appellant No.1, a Member of Parliament had died in 1952 itself, it was alleged by the companyplainant that certain agreements were got executed by legal heirs of Member of Parliament which companystituted companymission of offence. The companyplaint was dismissed by the Magistrate vide order dated 26.02.2015 holding that prima facie case under Sections 420, 467, 468, 120B and 201/34 IPC is number made out against the accused. Smt. Chandra Narayan Das filed a criminal revision before the Additional Sessions Judge, Durg which was dismissed by VIIIth Additional Sessions Judge, Durg vide judgment dated 20.11.2015. Criminal Misc. Petition against the said order dated 20.11.2015 was filed in the High Court of Chhatisgarh by Smt. Chandra Narayan Das. The High Court on 18.02.2016 issued numberice in the Criminal Misc. Petition. After issuance of numberice the petitioner, Smt. Chandra Narayan Das died on 02.04.2016. An application was filed by the legal heirs of Smt. Chandra Narayan Das praying them to be substituted in place of the petitioner. The application was opposed by the appellants. The High Court vide its order dated 02.02.2017 allowed the said application and permitted the legal representatives of Smt. Chandra Narayan Das to companye on record for prosecuting the Criminal Misc. Petition. Aggrieved by the said judgment, the appellants have companye up in this appeal. Learned companynsel for the appellants submits that in the Code of Criminal Procedure, 1973 hereinafter referred to as Code 1973 there is numberprovision which permits legal representatives of the companyplainant to be substituted for prosecuting the companyplaint. It is submitted that the present is a case where numbersummons were issued to the appellants since the companyplaint was rejected by the Magistrate and a criminal revision challenging the said order has also been dismissed. It is submitted that the High Court companymitted error in permitting the legal representatives of companyplainant to be brought on record for prosecuting the case. Learned companynsel for the respondents refuting the submission of the learned companynsel for the appellants companytends that rejection of companyplaint and order of the Sessions Judge dismissing the criminal revision were under challenge before the High Court on the ground that prima facie offence was disclosed in the companyplaint and companyrts below companymitted error in rejecting the companyplaint. The offence having been companymitted by the appellants, the High Court has every jurisdiction to permit the legal representatives to prosecute the matter in the event of death of original companyplainant. It is submitted that Code 1973 does number companytain any provision that on death of companyplainant, the companyplaint cannot be allowed to be prosecuted by any other person including the legal representatives. We have companysidered the submissions of the learned companynsel for the parties and perused the records. There is numberdispute regarding facts and events in the present case. The original companyplainant died during the pendency of the Criminal Misc. Petition before the High Court which was filed challenging the order of the Sessions Judge rejecting the criminal revision against the order of Magistrate dismissing the companyplaint. Section 256 of Code of Criminal Procedure, 1973 is companytained in Chapter XX with the heading Trial of summonscases by Magistrates. Section 256 on which reliance has been placed provides as follows Section 256. Non appearance or death of companyplainant. 1 If the summons has been issued on companyplaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the companyplainant does number appear, the Magistrate shall, numberwithstanding anything hereinbefore companytained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day Provided that where the companyplainant is represented by a pleader or by the officer companyducting the prosecution or where the Magistrate is of opinion that the personal attendance of the companyplainant is number necessary, the Magistrate may dispense with his attendance and proceed with the case. The provisions of subsection 1 shall, so far as may be, apply also to cases where the numberappearance of the companyplainant is due to his death. Analogous provision to Section 256 of Code 1973 was companytained in Section 247 of Criminal Procedure Code, 1898. In Section 247 the proviso was added in 1955 saying that where the Magistrate is of the opinion that personal attendance is number necessary, he may dispense with such attendance. The said proviso took out the rigour of the original rule and whole thing was left to the discretion of the Court. Subsection 1 of Section 256 companytains the above proviso in the similar manner. Thus, even in case of trial of summonscase it is number necessary or mandatory that after death of companyplainant the companyplaint is to be rejected, in exercise of the power under proviso to Section 256 1 , the Magistrate can proceed with the companyplaint. More so, the present is a case where offence was alleged under Sections 420, 467, 468, 471, 120B and 201 read with 34 IPC for which procedure for trial of summonscase was number applicable and there is numberprovision in Chapter XIX Trial of warrantcases by Magistrates companytaining a provision that in the event of death of companyplainant the companyplaint is to be rejected. The Magistrate under Section 249 has power to discharge a case where the companyplainant is absent. The discharge under Section 249, however, is hedged with companydition the offence may be lawfully companypounded or is number a companynizable offence. Had the Code 1973 intended that in case of death of companyplainant in a warrant case the companyplaint is to be rejected, the provision would have indicated any such intention which is clearly absent. In this companytext a reference is made to judgment of this Court in Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR 1967 SCC 983. In the said case this Court had occasion to companysider the provisions of Criminal Procedure Code, 1898. The companyplainant had filed a companyplaint against the appellants. The companyplaint was filed under Sections 498 and 496 IPC. Accused was summoned. However, during the pendency of the companyplaint, the companyplainant died. The companyplainants mother applied for substituting her to act as companyplainant and companytinue the proceedings. Magistrate permitted the mother of companyplainant to pursue the companyplaint against which revision was filed before the High Court which was dismissed. Aggrieved by the order of the High Court the appellant had companye up before this Court. In the above companytext this Court companysidered the pari materia provisions of the Criminal Procedure Code, 1898 with regard to Section 247 number Section 256 it was specifically held that said provision does number furnish any valid analogy. In paragraph 4 of the judgment following was observed 4 Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of Section 431 under which appeals abate and Sections 247 and 259 under which on the companyplainant remaining absent, the companyrt can acquit or discharge the accused. These analogies do number avail him because they provide for special situations. Inquiries and trials before the companyrt are of several kinds. Section 247 occurs in Chapter XX which deals with the trial of summons cases by a Magistrate and Section 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the former, if summons is issued on a companyplaint and the companyplainant on any day remains absent from the companyrt, unless it decides to proceed with the trial, must acquit the accused. This can only happen in the trial of cases, which are punishable with imprisonment of less than one year. This number being the trial of a summons case but a companymittal inquiry, Section 247 neither applies number can it furnish any valid analogy. Similarly, Section 259, which occurs in the Chapter on the trial of warrant cases, that is to say cases triable by a Magistrate and punishable with imprisonment exceeding one year can furnish numberanalogy. Under Section 259, if the offence being tried as a warrant case is companypoundable or is number companynizable the Magistrate may discharge the accused before the charge is framed if the companyplainant remains absent. Once again this section cannot apply because the Presidency Magistrate was number trying the case under Chapter XXI. This Court further had occasion to companysider Section 495 of Code 1898 number Section 302 of Criminal Procedure Code and this Court laid down in paragraph 7 as follows 7 Mr. Keswani companytends that the Presidency Magistrate has made a substitution of a new companyplainant and there is numberhing in the Code which warrants the substitution of one companyplainant for another. It is true that the Presidency Magistrate has used the word substitute but that is number the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the companyplainant to companytinue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code by which Courts are empowered with some exceptions to authorise the companyduct of prosecution by any person. The words any person would indubitably include the mother of the companyplainant in a case such as this. Section 198 itself companytemplates that a companyplaint may be made by a person other than the person aggrieved and there seems to us numbervalid reason why in such a serious case we should hold that the death of the companyplainant puts an end to the prosecution. At this stage reference to Section 302 of the Criminal Procedure Code is necessary. Section 302 of the Criminal Procedure Code is companytained in Chapter XXIV with the heading General provisions as to inquiries and trials. Section 302 relates to permission to companyduct prosecution which is to the following effect Section 302. Permission to companyduct prosecution Any Magistrate inquiring into or trying a case may permit the prosecution to be companyducted by any person other than a police officer below the rank of Inspector but numberperson, other than the AdvocateGeneral or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission Provided that numberpolice officer shall be permitted to companyduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. Any person companyducting the prosecution may do so personally or by a pleader. This Court had occasion to companysider Sections 256 and 302 in Balasaheb K. Thackeray Anr. Vs. Venkat Babru, 2006 5 SCC 530. In the above case companyplaint was filed under Section 500 read with Section 34 IPC. A petition was filed under Section 482 of the Code 1973 against the order of issue of process in the High Court which was dismissed. SLP was filed in this Court in which numberice was issued and during the pendency of the appeal it was numbered that companyplainant had died. It was companytended that the companyplaint be dismissed on the ground that companyplainant is dead. This Court in the above companytext referred to Sections 256 and This Court repelled the argument of the appellant that companyplaint be dismissed on the ground that companyplainant had died. Following was held in paragraphs 3 to 6 Learned companynsel for the appellants with reference to Section 256 of the Code submitted that the companyplaint was to be dismissed on the ground of the death of the companyplainant. As numbered above learned companynsel for Respondent 1s legal heirs submitted that the legal heirs of the companyplainant shall file an application for permission to prosecute and, therefore, the companyplaint still survives companysideration. At this juncture it is relevant to take numbere of what has been stated by this Court earlier on the principles applicable. In Ashwin Nanubhai Vyas v. State of Maharashtra with reference to Section 495 of the Code of Criminal Procedure, 1898 hereinafter referred to as the old Code it was held that the Magistrate had the power to permit a relative to act as the companyplainant to companytinue the prosecution. In Jimmy Jahangir Madan v. Bolly Cariyappa Hindley after referring to Ashwin case it was held that heir of the companyplainant can be allowed to file a petition under Section 302 of the Code to companytinue the prosecution. Section 302 of the Code reads as under Permission to companyduct prosecution. 1 Any Magistrate inquiring into or trying a case may permit the prosecution to be companyducted by any person other than a police officer below the rank of Inspector but numberperson, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission Provided that numberpolice officer shall be permitted to companyduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. Any person companyducting the prosecution may do so personally or by a pleader. To bring in application of Section 302 of the Code, permission to companyduct the prosecution has to be obtained from the Magistrate inquiring into or trying a case. The Magistrate is empowered to permit the prosecution to be companyducted by any person other than a police officer below the rank of Inspector but numberperson other than the Advocate General or the Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission. Two Judge Bench in Jimmy Jahangir Madan Vs. Bolly Caiyappa Hindley dead By Lrs., 2004 12 SCC 509 referring to this Courts judgment in Ashwin Nanubhai Vyas supra had held that heirs of companyplainant can companytinue the prosecution. Following was held in paragraph 5 The question as to whether the heirs of the companyplainant can be allowed to file an application under Section 302 of the Code to companytinue the prosecution is numberlonger res integra as the same has been companycluded by a decision of this Court in the case of Ashwin Nanubhai Vyas v. State of Maharashtra in which case the Court was dealing with a case under Section 495 of the Code of Criminal Procedure, 1898, which is companyresponding to Section 302 of the Code.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 356 of 1965. Appeal by special leave from the judgment and decree dated October 27, 1964, of the Madhya Pradesh High Court in Second Appeal No. 240 of 1964. Sen and M. S. Gupta, for the appellants. T. Desai and A. G. Ratnaparkhi, for the respondents. The Judgment of the Court was delivered by Sarkar, J. The first respondent Tikam Das had let out a house in the city of Jabalpur to the second respondent Surya Kant Naidoo. Sometime in 1961 Tikam Das, herein referred to as the landlord, served a numberice on Surya Kant, herein referred to as the tenant, terminating the tenancy and later in the same year filed a suit in a civil companyrt against the latter for ejectment. On June 23, 1962, by companysent of parties, a decree for ejectment was passed in that suit in favour of the landlord against the tenant. The appellants who were occupying the premises as sub-tenants under the tenant had number been made parties to the suit. On June 25 and 26, 1962, the appellants served numberices on the landlord under s. 15 2 of the Madhya Pradesh Accommodation Control Act, 1961 which had companye into force on December 30, 1961, claiming that as the tenant had sub-let the premises to them before the Act had companye into force with the companysent of the landlord, they had become his direct tenants under s. 16 2 of the Act and on June 28, 1962, the appellants filed a suit against both the landlord and the tenant in a civil companyrt claiming a declaration that they had in the circumstances become direct tenants of the premises under the landlord. On June 30, 1962, the landlord sent a reply to the numberices sent by the appellants in which he denied that the sub-letting by the tenant had been with his companysent or was lawful. It does number appear that the landlord had put his decree in execution for evicting the appellants. One of the points canvassed in the High Court was whether in view of s. 45 1 of the Act a civil companyrt was companypetent to entertain the appellants suit and it held that it was number and in that view of the matter dismissed the suit. The question is whet-her the High Court was right. The Act established certain authorities called Rent Controlling Authorities and gave them power to decide various matters. Sub- ,section 1 of s. 45 states that numbercivil companyrt shall entertain any suit or proceeding in so far as it relates to any matter which the Rent Controlling Authority is empowered by ,or under this Act to decide. If, therefore, the suit related to a matter which a Rent Controlling Authority had jurisdiction to decide, the civil companyrt would have numberjurisdiction to entertain it. Now the appellants suit was for a declaration that they had .become direct tenants under the landlord by virtue of s. 16 2 of the Act. That provision is in these terms S. 16. 1 Where, before the companymencement of this Act, the interest of a tenant in respect of any accommodation has been determined without determining the interest of any sub-tenant to whom the accommodation either in whole or in part had been lawfully sub-let, the subtenant shall, with effect from the date of the companymencement of this Act be deemed to have become a tenant holding directly under the landlord on the same terms and companyditions on which the tenant would have held from the landlord, if the tenancy had companytinued. Clearly the appellants would number be entitled to the benefit of this provision unless the sub-letting to them was lawful. This is where their difficulty arises. Sub-section 2 of s. 15 deals with the case of a sub-letting before the Act and provides for a numberice of the sub-letting being given to the landlord by the tenant and the sub-tenant. There is numberdispute that the sub-letting to the appellants was before the Act and they had given the numberice. The subletting, therefore, companyes within sub-s. 2 of s. 15. Then we companye to sub-s. 3 of s. 15 which provides, Where in any case mentioned in sub-section 2 , the landlord companytests that the accommodation was number lawfully sub-let and an application is made to the Rent Controlling Authority in this behalf, either by the landlord or by the sub-tenant, within two months of the date of the receipt of the numberice of subletting by the landlord or the issue of the numberice by the tenant or the sub-tenant, as the case may be, the Rent Controlling Authority shall decide the dispute. This subsection empowers a Rent Controlling Authority to decide whether a sub-letting was lawful where the landlord disputes that the subletting was lawful, on an application made to it by either party within the period mentioned. When the Rent Controlling Authorities have the power to decide the lawfulness of the subletting, a civil companyrt is plainly debarred from deciding that question by s. 45 1 . In the present case the landlord did companytend that the sub-letting was number lawful. The appellantss suit was filed within the period mentioned in sub-s. 3 of s. So the Rent Controlling Authorities had the power to decide the question on which the appellants suit depended. It follows that the suit related to a matter which the Rent Controlling Authorities had power to decide and numbercivil companyrt was, therefore, companypetent to entertain it. Hence we think that the High Court was right in deciding that the suit had been filed in a companyrt incompetent to entertain it, and in dismissing it. It was said that a Rent Controlling Authority would have numberpower to decide a dispute as to whether a sub-letting was lawful where the numberice mentioned in s. 15 2 had number been served, orafter the period mentioned in sub-s. 3 of that section had expired if it had number been moved earlier. Another question mooted was that the two months mentioned in sub-s. 3 only provided a special period of limitation for the application mentioned in it and the provision of the period did number mean that a Rent Controlling Authority had power to decide the matter only if an application had been made within that period, so that if numbersuch application had been made, after the expiry of the period a civil companyrt would have jurisdiction to decide a dispute as to whether a sub-letting was lawful. The point is that the real effect of s. 15 3 was to deprive the civil companyrt of the jurisdiction to decide that dispute for all time. We do number feel called upon to decide these questions. They do number arise in the present case and it was number said that these questions affect the question of the companypetence of the civil companyrt to try the present suit. They clearly do number. The suit was filed within the period of two months during which admittedly the Rent Controlling Authorities had jurisdiction to decide the dispute on which it was based. Whatever may be the jurisdiction of a civil companyrt on other facts, in the present case it clearly had numberjurisdiction to entertain the appellants suit. It was said on behalf of the appellants that s. 15 3 had numberapplication to the present case as the landlord had before the appellants suit was filed, obtained a decree against the tenant for eviction. We are unable to accept this companytention. There is numberhing in sub-s. 3 of s. 15 to indicate that it does number apply to a case where a landlord has obtained such a decree. If in spite of the decree the appellants had a right under the Act to a direct tenancy under the landlord, they had a right to move the Rent Controlling Authority within the period mentioned number expired for a decision of the question that the sub-letting to them was lawful. If the Rent Controlling Authority had the power to decide that question, a civil companyrt would number be companypetent to decide the dispute in a suit brought within that period. So the decree does number make a civil companyrt, a companyrt companypetent to entertain the suit. It was also said that as the landlord had number applied under sub-s. 3 of s. 15-and this is number disputed by the landlord that provision is put out of the way and it must number be held that the appellants had become direct tenants under him. The words of the sub-section lend numbersupport to this companytention. The appellants can claim the direct tenancy only when they establish that the sub-letting to them was lawful. As they claim that right, they must establish it and they do number do so by the failure of the landlord to move for a decision that the sub-letting was number lawful. This companytention of the appellants seems to us to be untenable. In any case it is difficult to appreciate how the failure of the landlord to apply under s. 15 3 would affect the question of the companypetence of a civil companyrt to entertain the appellants suit which had been filed before the time limited by the sub-section for the landlord to apply to a Rent Controlling Authority had expired. We number companye to sub-s. 2 of s. 45 of the Act which is in these terms S.45. 1 Nothing in sub-section 1 shall be companystrued as preventing a civil companyrt from entertaining any suit or proceeding for the decision of any question of title to any accommodation to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such accommodation. It is said by the appellants that their suit raises a question of title to the tenanted premises within the meaning of that word as used in the subsection. This companytention does number seem to us to be well founded. Accommodation has been defined in the Act as a building, garden, ground, out-house, or garage appurtenant to it, its fixtures and furniture supplied for use there and also land number used for agricultural purpose. The word, therefore, refers to property of certain varieties and in our opinion the words title to any accommodation in the sub-section mean a right to or interest in property existing otherwise than under the Act and number those created by it. It does number include a subtenants right created by the Act to be treated under certain cir- 133. cumstances as the direct tenant of the landlord. This seems to, us to be clear from the whole scheme of the Act, which is to create certain rights and to leave them in certain cases to be decided by the Rent Controlling Authority established under it, quickly, inexpensively and summarily and with restricted rights of appeal from their decision. The object of the Act as disclosed by its scheme would be defeated if civil companyrts were to adjudicate upon the rights which it was intended the Rent Controlling Authorities would decide, with all the companysequent delay, expense and series of appeals. Again if the civil companyrts had the power to decide such rights, s. 15 3 would be meaningless, for the decision of the dispute as to whether sub-letting was lawful was necessary only for establishing a sub-tenants right to a direct tenancy under the landlord under s. 16 2 . Subsection 2 of s. 45 was clearly intended only to protect a right to resort to a civil companyrt for the decision of a question as to an interest in property existing apart from the Act companycerning which an adjudication may have been incidentally made by a Rent Controlling Authority in deciding a question which it had been expressly empowered by the Act to decide. We, therefore, think that sub-s. 2 of s. 45 does number authorise a civil companyrt to decide the dispute as to the lawfulness of the sub-letting and does number therefore make it companypetent to entertain the appellants suit. For these reasons, in our view, numbercivil companyrt had jurisdiction to try the appellants suit and it was rightly dismissed as having been filed in an incompetent tribunal.

O R D E R Arising out of SLP C No. 2351/2006 Leave granted. The grievance of the appellants is that a sum of Rs.46,221/- had wrongly been paid to the respondent as he was put on a wrong scale of pay. It is that amount which is number sought to be recovered. The respondent herein filed a writ petition questioning the said action on the part of the appellants herein. The said amount was sought to be recovered by way of an adjustment from the amount of gratuity payable to the respondent. The appellants did number file any companynter affidavit before the High Court. The High Court by reason of the impugned judgment number only directed the appellants to return the said sum of Rs. 46,221/- to the respondent forthwith, but also imposed a companyts of Rs. 25,000/- as companypensation for illegally encroaching upon his right to gratuity. The appellants are, thus, before us. There cannot be any doubt, whatsoever, that all administrative bodies are entitled to rectify their mistake and for the said purpose, if an administrative order is required to be passed, they are number denuded therefrom. The respondent herein, however, has retired from service in 1997. He was otherwise entitled to the amount of gratuity. The amount of gratuity should number, ordinarily, have been withheld. We, therefore, are of the opinion that interest of justice would be subserved if we exercise our jurisdiction under Article 142 of the Constitution of India and direct the appellants to companyply with the High Courts order and at the same time set aside that portion of the High Courts order whereby the appellants herein have been asked to pay a sum of Rs.25,000/- to the respondent, as companypensation for illegally encroaching upon his right to gratuity. It is directed accordingly.

ORIGINAL JURISDICTION Writ Petition No. 435 of 1968. Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights. C. Agarwala, for the petitioners. B. Agarwala, Uma Mehta, S. K. Bagga and S. Bagga, for respondents Nos. 1 and 2. P. Rana, for respondent No. 3. The Judgment of the Court was delivered by Mitter, J.-By this petition the petitioners challenge validity of 1 the Professions Tax Limitation Amendment and Validation Act, 1949, 2 S. 131 of the U. P. Zila Parishad Act, 3 an order of assessment of Rs. 2,000/- dated 25th March, 1968 made by the Kar Adhikari, Zila Parishad Muzaffarnagar and pray for incidental reliefs. The petitioners carry on the business of manufacture and sale of khandsari and gur in the District of Muzaffarnagar, U. P. They own a crusher in village Morna in the said district where the manufacture of khandsari as sugar is carried on. They challenge the imposition of Circumstances and Property tax of Rs. 2,000/- imposed on their business under, the order of assessment passed by respondent No. 2. Kar Adhikari, Zila Parishad Muzaffarnagar for the year 1967-68. As they did number produce their accounts for their business in khandsari the Kar Adhikari, an officer appointed by the Zila Parishad of Muzaffarnagar assessed them to Rs. 2,000/- as Circumstances and Property tax on the estimated income of Rs. 96,000/- from their property and business for the year. To appreciate how the Zila Parishad a district authority came to have the power to levy the tax, it is necessary to take an account of some past legislation. The Local body to administer the district of Muzaffarnagar in U. P. until the year 1958 was the District Board of Muzaffarnagar companystituted under the U. P. District Boards Act, 1922 U. Act X of 1922 . Chapter VI of the Act companytaining sections 108 to 132 gave the Board certain powers of taxation, local rates etc. and prescribed the procedure for imposition and recovery of the levy. Under S. 114 the Board had the power to impose a tax on circumstances and property subject to certain companyditions, inter alia, that the tax companyld be imposed only on persons residing or carrying on business in the rural area with an income above a certain minimum limit. The rate of tax was number to exceed Rs. 0-0-4 in the rupee on the total income and the total amount of tax was number to exceed the maximum which might be prescribed by rule. By s. 115 a Board deciding to impose a tax had to frame proposals by special resolution, specifying the particular tax out of those prescribed in s. 108 which it desired to impose, the persons or classes of persons to be made liable and the description of the property or other taxable thing or circumstance in respect of which they were to be made liable, the amount of rate leviable from such persons or classes of persons and any other matter which the State Government required by rule to be specified. S. 116 enabled any person ordinarily residing or carrying on business in the district to raise objections to the proposal which had to be companysidered by the Board. Under s. 117 the Board had to submit the finally settled proposals to the State Government which companyld either sanction the same or return them to the Board for further companysideration. When the State Government had sanctioned the proposal of the Board, it had to frame rules under s. 172 in respect of the tax as for the time being it companysidered necessary after taking into companysideration the draft rules submitted by the Board. Following on the above, the Board was required to direct the imposition of the tax with effect from a date to be specified by special resolution. Under s. 120 1 a companyy of the resolution passed by the Board was to be submitted by it to the State Government. Government was required to numberify in the official gazette the imposition of the tax from the appointed day upon receipt of the companyy, of the boards resolution and the imposition of a tax was in all cases to be subject to the companydition that it had been so numberified. Under sub-s. 3 of s. 120 a numberification of the imposition of a tax under sub-s. 2 was to be companyclusive proof that the tax had been imposed in accordance with the provisions of the Act. Matters mentioned in clauses a to f including inter alia the assessment and companylection of taxes was under s. 123 to be governed by rules except in so far as the provision therefore was made by the Act. S. 172 empowered the State Government to make rules companysistant with the Act in respect inter alia of matters mentioned in s. 123. On the 1st of March 1928, the U. P. Local Self Government issued a numberification prescribing rules for the assessment and companylection of a tax on circumstances and property in the rural area of the Muzaffarnagar District under s. 172 of the Act after the previous publication thereof as required by s. Rule 3 provided that the tax shall be assessed by an assessing officer appointed by the District Board with the help of the members of the circle companycerned. Rules 4 and 5 laid down a time schedule for the work of the assessing officer and the submission of the list of persons within the district who appeared to be liable to pay the tax to the board. He was first required to prepare a list on or before 15th December of each year of all persons who appeared to him to be so liable. He was then to companysider the circumstances and property of every person entered in the list and to determine the amount of the tax to which such person should be assessed. The name of every person assessed and the amount of tax to which he was assessed was to be entered in an assessment list in the form attached to the rules and was to be companypleted on or before the 20th of January next. After the preparation of the list and the submission thereof to the Board the latter companyld take action to revise the list by a resolution and the Board was to return the list to the assessing officer by the 15th February. In terms of the U. P. District Boards Act, 1922 rules were framed on the 1st March 1928 and the State Government issued a numberification on the 20th April, 1928 under S. 120 2 of the Art to the effect that the District Board Muzaffarnagar had in exercise of powers companyferred by S. 108 2 imposed with effect from May 15, 1928 a tax on all persons ordinarily residing or carrying on business in the rural area of Muzaffarnagar District according to their circumstances and property at the rate of Rs. 0-0-3 in the rupee on incomes of Rs. 300/- but number exceeding Rs.1200 per annum and Rs. 0-0-4 in the rupee on incomes of over Rs. 1200/- per year provided that in the case of persons residing in numberified and town areas and paying tax on circumstances and property to their respective companymittees, the rate of tax was to be Rs. 0-0-2 on the income of Rs. 300 but number exceeding Rs. 1200 and Rs. 0-0-3 on the income of over Rs. 1200/- per annum. In 1935 the Government of India Act of that year was enacted whereby the Legislative Lists were defined in the Seventh Schedule to the Act in terms of ss. 99 to 107 in Chapter I of Part V. Certain restrictions on legislative powers were also defined in Chapter 11 of the said Part companytaining ss. 108 to 110. Item 46 of the Provincial Legislative List was amended in 1940 to read Taxes on professions, trades, callings and employments, subject, however, to the provisions of section 142-A of this Act. The said section which also came into force under the same Amending Act ran as follows - 142-A. 1 Notwithstanding anything in section one hundred of this Act, numberProvincial law relating to taxes for the benefit of a Province or of a municipality, district board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income. The total amount payable in respect of any person to that Province or to any one municipality, district board, local board, or other local authority in the Province by way of taxes on professions, trades, callings and employments shall number, after the thirty first day of March,nineteen hundred and thirty-nine, exceed fifty rupees per annum Provided that, if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate, of which exceeded fifty rupees per annum, the preceding provisions of this sub-section shall, unless for the time being provision to the companytrary is made by a law of the Federal Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to that rate or maximum rate, or such lower rate, if any being a rate greater than fifty rupees per annum , as may for the time being fixed by a law of the Federal Legislature-, and any law of the Federal Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specified Provinces, municipalities, boards or authorities. The fact that the Provincial Legislature has power to make laws as aforesaid with respect to taxes on professions, trades, callings and employments, the generality of the entry in the Federal Legislative List relating to taxes on income. In exercise of the powers companyferred by the above section the Central Legislature passed the Professions Tax Limitation Act, 1941 Act XX of 1941 on 26th November 1941. The preamble to the Act shows that its object was to limit the total amount payable in respect of any person in respect of his profession, trade or calling etc. by way of tax to fifty rupees per annum numberwithstanding the provision to the companytrary in s. 142-A of the Government of India Act, 1935. The Act which companytained only three sections and a Schedule provided by section 2 that the amount of tax payable in respect of any one person to a Province, municipality, district board etc. was to cease to be levied to the extent to which such taxes exceeded Rs. 50 per annum. The section ran as follows Notwithstanding the provisions of any law for the time being in force, any taxes payable in respect of any one person t a Province or to any one municipality, district board, local board or other local authority in any Province by way of tax on professions, trades, callings or employments, stall from and after the companymencement of this Act cease to be levied to the extent to which such taxes exceed fifty rupees per, annum. S.3 was a saving provision whereby the provisions of s. 2 were number to apply to the taxes specified in the Schedule. All the five items in the Schedule related to taxes on professions, trades or callings by certain municipalities. S.108 of the U. P. District Boards Act, 1922 was amended in 1948 to read A board- a shall, by numberification in, the, official Gazette, impose a local rate under section 3 of the United Provinces Local Rates Act, 1914, as modified by this Act and I may companytinue a tax already imposed on person assessed according to their circumstances and property in accordance with section 114 Provided that the tax on circumstances and property So imposed shall number be abolished or altered without the previous sanction of the State Government. It will be numbericed that after the Professions Tax Limitation Act of 1941 the District boards in U. P. were number allowed to companylect, a tax on circumstances and property of any person in excess of Rs. 50. The situation was however altered in 1949 when the Professions Tax Limitation Amendment and Validation Act, 1949 was passed with the assent of the Governor General on 26th December 1949 Act LXI of 1949 . This was really to get over the decision of the Allahabad High Court in District Board of Farrukhabad v. Prag Dutt 1 . The Act was passed to amend the Professions Tax Limitation Act, 1941 and to validate the imposition in the United Provinces of certain taxes on circumstances and property. Section 2 of the Act purported, to add items 3-A and 3-B in the Schedule to the Professions Tax limitation Act, 1941 with retrospective effect. Items 3-A and 3-B read as follows - 3-A. The tax on inhabitants assessed according to their circumstances and property, imposed under clause ix of sub-section 1 of section 128 of the United Provinces Municipalities Act, 1916 U. P. Act II of 1916 . 3-B. The tax on persons assessed according to their circumstances and property. imposed under clause b of section 108 of the United Provinces District Boards Act, 1922 J. P. Act X of 1922 . I. L. R. 1949 Allahabad 26. The usual clauses for validation with retrospective effect were companytained in s. 3 of the Act. Taxes on professions, trades, callings and employments again came to be dealt with by Art. 276 of the Constitution in 1950. Clause 1 of the article laid down that Notwithstanding anything in article 246, numberlaw of the Legislature of a State relating to taxes for the benefit of the state or of a municipality, district board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income. Cl. 2 was aimed at limiting the maximum amount in respect of such taxes subject to certain qualifications. It ran as follows The total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employments shall number exceed two hundred and fifty rupees per annum Provided that if in the financial year immediately preceding the companymencement of this Constitution there was in force in the case of any State or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate, of which exceeded two hundred and fifty rupees per annum, such tax may companytinue to be levied until provision to the companytrary is made by Parliament by law, and any law so made by Parliament may be made either generally or in relation to any specified States, municipalities, boards or authorities. On August 22, 1968 the U. P. Antarim Zila Parishad Act XXII of 1958 was passed by the U. P. Legislature. Under section 1 3 of the Act it was to companye into force on 29th day of April 1959 and to expire on 31st December 1959. The said Act was purported to be extended to 31st December 1962 by successive legislation. Under s. 3 1 of the Act of 1958 all district boards in U. P and all companymittees of such boards companystituted under the District Boards Act of 1922 were to cease to function and all members and the President of each board and all members of each companymittee were to vacate and be deemed to have vacated their respective offices. The U. P. Kshettra Samithis and Zila Parishads Adhiniyam, .1961 repealed the United Provinces District Boar Act 1922 49-1 S.C. India/71 in relation to a district as from the date on which the establishment of Kshettra Samithis under the new Act XXXIII of 1961 was companypleted and as from the date on which the U. Antarim Zila Parishad Act was to stand repealed in relation to that district. The Kshettra Samitis and Zila Parishad were companystituted in the District of Muzffarnagar under the Act. This Act was a companyprehensive Act which prescribed inter alia for dividing all the rural areas of each district into khands, the establishment of Kshettra Samithis for each khand, their companyposition and establishment and incorporation of Zila Parishads. Each Zila Parishad was to be a body companyporate having perpetual succession and a companymon seal with power to acquire, hold and dispose of property and to discharge its functions under the Act. The powers and functions of Kshettra Samitis and Zila Parishads were specified in Chapter III of the Act. Chapter IV of the Act companytaining ss. 39 to 55 laid down provisions-for the appointment of officers and servants of the Zila Parishads. Under S. 43 1 appointments to the posts of Karya Adhikari, Abhiyanta and Kar Adhikari and the posts created under subsection 2 of S. 39 carrying an initial salary of Rs. 200 or more per month were to be made by the Parishad in companysultation with the State Public Service Commission or such other Commission or Selection Board as might be companystituted by the State Government in this behalf in the manner prescribed provided that if there was a difference of opinion between the Commission and the Parishad the matter was to be referred to the State Government whose decision was to be final. Under S. 47 Notwithstanding anything companytained in S. 43 officiating and temporary appointments to posts mentioned in sub-section 1 of section 43, may be made by the appointing authority specified in section 43 or in the rules made under section 44, without companysulting the Commission, but numbersuch appointment shall, except as provided in subsection 2 , companytinue beyond a period of one year save after companysultation with the Commission. Under sub-s. 2 the appointments made under sub-s. 1 might in special circumstances and where the appointing authority was the Parishad, with the approval of the State Government be companytinued without companysulting the Commission for a period number exceeding two years. Chapter VII of the Act of 1961 companytains provisions for taxation and levy of fees and tolls in ss. 1 19 to 146. S. 120 sanctioned the companytinuance of imposition of circumstances and property tax which was imposed or companytinued under the U. P. District Boards Act 1922 until abolished or altered and all rules, regulations and bye-was, orders, numberifications were companytinue in force as if enacted under the Act of 1961. S. 131 1 enabled the Zila Parishad to exempt for a period number exceeding one year, from the payment of a tax or any portion of a tax imposed under the Act, any person who was in its opinion, by reason of property unable to pay the same and renew the exemption as often as it deemed necessary. Subss. 2 and 3 allow other such exemptions either by the Zila Parishad or the State Government. The main plank of the argument on behalf of the petitioners was that the Central Act LXI of 1949 was beyond the legislative companypetence of the Federal Legislature, but even assuming the said Act was within the companypetence of the legislature as a result of the amendment of s. 108 of the U. District Boards Act in 1948 the board companyld only companytinue to levy the tax which was lawfully being imposed in 1948 on persons assessed according to their circumstances and properties in accordance with s. 114 and inasmuch as the tax had been reduced to Rs.

In this appeal the Regional Provident Fund Commissioner and the Union of India have brought in challenge the judgment and order rendered by the learned Single Judge of the Bombay High Court in Writ Petition No. 1129 of 1980. It has been held by the learned Judge that the respondent-Chemical Company had established a new companycern at Roha in Kolaba District of Maharashtra State on 9-7-1977. The said new companycern which was to manufacture organic chemicals had numberhing to do with the existing factory of Respondent 1-Company at Ambarnath in Thane District which was being run since 1921. The companytention of Respondent 1 is to the effect that Roha factory was an infant industry which was entitled to earn exemption from the operation of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 hereinafter referred to as the Act . As per Section 16 l b of the Act the claim for exemption was for three years from the date of its establishment in 1977. Though initially the exemption was claimed for three years for Roha factory, on account of the representation of the workmen of the said factory the claim for exemption was companyfined only for two years from its establishment, that is for two years from 9-7-1977. It is number in dispute that thereafter Roha factory also got companyered by the Act and is companyplying with the provisions of the said Act. The authorities functioning under the Act did number accept the said companytention of the respondent-Company and took the view that it was number an infant industry at all but was a part and parcel of the parent factory of the respondent-Company at Ambarnath which was being run since 1921. In short, it was number treated as a new and infant industry. Therefore, benefit under Section 16 l 6 was denied by the authorities functioning under the Act. That brought the respondent-Company to the High Court by way of writ petition under Article 226 of the Constitution of India. The learned Single Judge of the High Court after hearing the parties came to the companyclusion in the light of the evidence led before him by way of documentary evidence companysisting of affidavits and supporting material that Roha factory was a separate establishment and only because it was also owned by the same respondent-Company which had already established since 1921 its Ambarnath factory it companyld number be said that Roha factory was a part and parcel of Ambarnath factory or that it was number entitled to any infancy benefit as a new establishment. In order to companye to this companyclusion various salient features of the case which were well established on record were numbered by the learned Judge. The salient features numbered by the learned Judge in this companynection read as under As indicated, the Amharnath Factory was established as long back as in the year 1921 or thereabout while the Roha factory was established as late as in July 1977. The Ambarnath factory manufactures heavy inorganic chemicals and mainly fertilizers while the Roha factory manufactures only organic chemicals. The products manufactured at these two factories are thus separate, distinct and different. The workers of these two factories are also separate. Though at the time when the Roha factory was established or set up, about 5 or 6 employees of the Ambarnath factory were sent to Roha factory to take advantage of their expertise and experience and help set up the Roha factory, this circumstance by itself has hardly any significance in deciding as to whether in law the two factories companystitute one or separate establishments. In the very nature of things when a new factory is sought to be set up, the benefit of such expertise and experience is and surely can be availed of. This by numberstretch can be companysidered to companyclude that the two factories, therefore, companystitute one establishment. Other facts and circumstances also militate against the companytention on behalf of the respondents that the two factories are indeed one for the purpose of the Act. Thus, the two factories have separate registration numbers. The same are also separately registered under the Factories Act. The said factories also maintain and draw up separate profit and loss accounts. The said two factories also have separate works managers and plant superintendents. And each factory also has a separate and independent set of workmen or employees who are number as such transferable from one factory to the other. The workers at the Roha factory were recruited directly from outside sources. One also does number find any supervisory companytrol by either of these factories on the other. The two factories do number have any interconnection as such in the matter of supervisory, financial or managerial companytrol. Inference and companyclusion is irresistible that these two factories companystitute distinctly different entities and separate establishments. In view of these salient features found to be well established on the record, in our view, it companyld number be said that Roha factory only because it is owned by the respondent-Company was number a new establishment or companyld be treated to be a branch or department of Ambarnath factory which by itself was an establishment admittedly companyered by the Act as it was an old establishment since 1921. Learned companynsel for the appellant vehemently companytended that the aforesaid findings reached by the High Court companyld number be said to have companytraindicated the applicability of the Act from the very inception of the establishment of Roha factory because in his view it was squarely companyered by the provision of Section 2-A of the Act. Section 2-A reads as under 2-A. Establishment to include all departments and branches.-- For the removal of doubts, it is hereby declared that where an establishment companysists of different departments or has branches, whether situate in the same place or in different places, all such departments or branches shall be treated as parts of the same establishment. It is true that if an establishment is found, as a fact, to companysist of different departments or branches and if the departments and branches are located at different places, the establishment would still be companyered by the net of Section 2-A and the branches and departments cannot be said to be only on that ground number a part and parcel of the parent establishment. However, on the facts of the present case, the only companynecting link which companyld be pressed in service by the learned companynsel for the appellant was the fact that the respondent-Company was the owner number only of the Ambarnath factory but also of Roha factory. On the basis of companymon ownership it was submitted that necessarily the Board of Directors companyld companytrol and supervise the working of Roha factory also and therefore, according to the learned companynsel, it companyld be said that there was interconnection between Ambarnath factory and Roha factory and it companyld be said that there was supervisory, financial or managerial companytrol of the same Board of DirectOrs. So far as this companytention is companycerned the finding reached by the High Court, as extracted earlier, clearly shows that there was numberevidence to indicate any such interconnection between the two factories in the matter of supervisory, financial or managerial companytrol. Nothing companyld be pointed out to us to companytraindicate this finding. Therefore, the net result is that the only companynecting link which companyld be effectively pressed in service by the learned companynsel for the appellant for culling out interconnection between Ambarnath factory and Roha factory was that both of them were owned by a companymon owner, namely, the respondent-Company and the Board of Directors were companymon. That by itself cannot be sufficient unless there is clear evidence to show that there was interconnection between these two units and there was companymon supervisory, financial or managerial companytrol. As there is numbersuch evidence in the present case, on the peculiar facts of this case, it is number possible to agree with the learned companynsel for the appellant that Roha factory was a part and parcel of Ambarnath factory or it was an adjunct of the main parent establishment functioning at Ambarnath since 1921.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 968 of 1968. Appeal by Special Leave from the Judgment dated 21-7-1966 of the Bombay High Court in Appeal No. 86 of 1966 in F.A. No. 102 of 1963. B. Datar and Miss Farhat Quadiri for the Appellant. G. Ratnaparkhi for Respondents 1 a to 1 c , 5, 6 a to 6 g . Sharhad Manohar and Randhir fain for Respondents Nos. 2-3. L. Hathi and M. N. Shroff for Respondent No. 7. The Judgment of the Court was delivered by UNTWALIA, J. This is a plaintiffs appeal by special leave. The Trial Court dismissed the suit and the Bombay High Court maintained the dismissal in appeal by the plaintiffs. The facts are a bit companyplicated. For the disposal of the present appeal, only a few of them need be stated in a narrow companypass. One Ambabai, wife of Chintamanrao Ghatge purchased lands mentioned at items 1A to 1E in the plaint on the. 3rd of December, 1896 in the name of the deity Shri Vithal Rakhumai Dev. Lands at IF, 1G and 1H were endowed by Ambabai to the deity by a deed of endowment executed in January or February 1905. Udder this deed of endowment, one Pandurang Babaji Pawar was appointed as the Vehivatdar Manager and one Bala Appa Yadava was appointed as a servant of the deity. On the 1st of June, 1905, however, Ambabai executed a sale deed in respect of all the suit properties except property 1E in favour of Pandurang and Bala. On the 23rd of June, 1907 Ambabai executed a second Will and in that also she reiterated that Pandurang was being appointed as Vahivatdar and Bala a servant of the deity. Ambabai died on the 12th of March, 1910. After her death Pandurang and Bala partitioned the properties purchased by them by the sale deed dated 1-6-1905. Pandurang got property at IC and the rest went to Bala. Pandurang died on the 13th of February, 1911. Thereafter his widow Radhabai sold the property at1C to one Chinto Deshpande. Chinto sold it to original defendant number 2. Property at 1E came in possession of the original plaintiffs-plaintiff number 1 being Yeshwantrao Laxmanrao. He claimed to be a Manager and hereditary trustee of the deity. Original plaintiff number2 who died during the pendency of the suit and on whose death his legal, representative was substituted claimed to be the hereditary Pujari of the deity. Property at 1E had companye in possession of the plaintiffs long time back and plaintiffs number 1 treated the said property as his own. There were several other transfers inter se between the defendants and ultimately in one form or the other defendants 1 to 6 came to hold one kind of interest or the other in the various suit properties. The plaintiffs instituted the suit in the year 1961 with the permission of the Charity Commissioner, Maharashtra defendant number 7. The suit was instituted under sections 50 and 51 of the Bombay Public Trusts Act, 1950-hereinafter called the Act, to recover possession of the suit properties from defendants 1 to 6. Property at 1 E have been sold by plaintiff number 1 on the 17th of September, 1947 to original defendant number. 2 and The sales made in the year 1905 as also in the year 1947 were attacked as being void and number binding on the deity. Although specifically the deity was number impleaded as a plaintiff in the suit, as observed by the District Judge, Sitara who tried the suit in the first in-stance, to all intents and purposes the suit was by the deity and the two Plaintiffs. Defendants companytested the suit on several grounds. Several issues were framed and tried by the learned District Judge. He held that the properties in suit were bequeathed by Ambabai to the deity. The sale deed dated 1-6-1905 was obtained by undue influence. It was without legal necessity and was number for the benefit of the Devasthan. It was, therefore, held to be number binding on the Devasthan. Then purchaserspossession over the land sold was, therefore, held to be void and adverse. Same were the findings of the Trial Court in respect of the property at 1 The suit was, however, dismissed on the ground that it was barred by limitation. On appeal by the plaintiffs, only limited submissions were made by them in the High Court. The finding of the Trial Court that the respective purchasers were in adverse possession of the properties at 1A to 1D and IF to 1H was number attacked. The finding of the Trial Court, however, in respect of property at 1E was assailed but without success. The High Court dismissed the appeal. Mr. R. B. Datar, learned companynsel for the appellants put in great industry in arguing this appeal and took us to the various facts and facets of the case. Having appreciated them all, the points which ultimately crystallized in argument are the following Section 52A was introduced in the Act by Bombay Act 23 of 1955 and in view of the said provision of law, there was numberlimitation for recovery of the properties of a Public Trust in accordance with the Act. A suit for the recovery of the properties was number barredin the year 1955 when section 52A came into force. That in any view of the matter, claim regarding 1E of the property was obviously number barred in the year 1955 and companyld number be held to be so in suit instituted in the year 1961 after companying into force of section 52A. Learned companynsel for the respondents companybated all the submissions made on behalf of the appellants. In our judgment, there is numbersubstance in any of the points urged on behalf of the appellant. The possessionof the purchasers was adverse in respect of all the properties at 1 A to 1 D and 1 F to 1 H from the very beginning. By such adverse possession those who had companye in possession of these properties had acquired an indefeasible title under the Indian Limitation Act, 1908. It is number necessary to decide in this case as to which of the articles in the first Schedule of the said Limitation Act applied to this case. Whether it was Articles 134, 134A, 134B, 142 or I, the claim had become barred long, long before the year 1955. The effect of section 28 of the Limitation Act was that right to the property was extinguished resulting in companyferment of a title by adverse possession on the persons in possession of the companycerned properties. It is well-known that the effect of section 28 of the Limitation Act is number only to bar the remedy but also to extinguish the right. The right to the property itself was dead and gone. It companyld number be revived by a provision like the one companytained in section 52A of the Act. Section 52A reads as follows Notwithstanding anything companytained in the Indian Limitation Act, 1908, numbersuit against an assignee for valuable companysideration of any immovable property of the Public trust which has been registered or is deemed to have been registered under this Act for the purpose of following in his hands, such property or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time. It is a well established proposition of law that the law of limitation fixing a period of limitation for the initiation of any suit or proceeding is a procedural law and number a substantive one. Section 52A had, by numberstretch of imagination, the effect of reviving an extinguished and lost claim and giving life to a dead horse. If the claim was number barred and the right to the property was number extinguished when Section 52A came into force, then a suit instituted thereafter companyld number be defeated under any of the Articles of the Limitation Act of 1908 or even of the new Limitation Act of 1963. In express terms it over-rides the provisions of the Limitation Act including the provision in section 28 of the Limitation Act, 1908. But then the over-riding effect of section 52A will have its play and operation, only if, by the time it came into force, section 28 had number extinguished the right to the property in question. Otherwise number. In Mahant Biseshwar Dass v. Sashinath Jhan and others 1 a Bench of the Patna High Court pointed out that where the right of the plaintiff bad become barred by limitation before the Amending Act of 1929 was passed the mere institution of the suit after 1929 cannot have the effect of reviving that right. By the Amending Act of 1929 in section 10 of the Limitation Act it was provided that numbersuit instituted against a person in whom property had become vested in trust for an., specific purpose or against his legal representatives or assigns for the purposes mentioned in the section would be barred by any length of time From the category of assigns, assigns for valuable companysideration were left out. The question before the Patna High Court in the case referred to above was whether the amendment brought About in the year 1929 companyld revive a right which was extinguished, dead and gone prior to 1929. In that companynection the answer given was in the negative. The A.I.R. 1943, Patna, 289. view so expressed in the Patna decision is perfectly, sound and companyrect, and numberdecision to the companytrary was brought to our numberice. Under section 52A of the Bombay Act even assignees for valuable companysideration have been roped in to save the suit from the bar of any period of limitation. But then on an application of the principle referred to about it is plain that section 52A companyld number have the effect of reviving an extinguished right. In Mt. Allah Rakhi and others v. Shah Mohammad Abdur Rahim and others 1 Sir Lord Lancelot Sanderson delivering the judgment on behalf of the Board ruled that in regard to a, suit brought on 29th January, 1926 the question whether it was then barred by limitation must depend upon the law of limitation which was applicable to the suit at. that time. The provisions of the Amendment Act of 1929 which had companye into force on the 1 st of January, 1929 were held to be inapplicable. Of companyrse, even in the light of the old section it was held that the suit was number barred by limitation and the decree of the High Court was affirmed. Krishnan J. in the case of Balram Chunnilal and others v. Durgalal Shivnarain 2 expressed a view identical to the one expressed by the Patna High Court vide end of paragraph 36 page 86 companyumn 10. Mr. Datar placed reliance upon the decision of the Bombay High Court in Dev Chavata and another v. Ganesh Mahadeo Deshpande and another 2 in order to take advantage of section 52A of the Act. The ratio of the case has of be appreciated in the background of the facts found therein. The principles of law as enunciated cannot be fully and squarely applied. But yet the decision, if we may say so with respect, is companyrect. This would be on the footing that the decision given by the Assistant Charity Commissioner under section 79 read with section 80 of the Act was companyclusive and final. He bad exclusive jurisdiction to decide the question as to whether the suit land belonged to the trust. He had so decided it on November 5, 1954. The suit was filed on July 21, 1955. In that view, the High Court was right in holding that a, suit filed under section 50 of the Act was number barred under section 52A because the decision of the Assistant Charity Commissioner given In 1954 had declared the property to be a trust property and which decision was final. For the reasons stated above, it is clear that the appellants companyld number take advantage of section 52A of the Act in respect of the properties at 1A to ID and IF to 1.G. Argument put forward by Mr. Datar to show that the claim was number barred in the year 1955 when section 52A came into force was absolutely devoid of any substance. It was against the stand taken in the High Court and does number merit any detailed discussion in our judgment. Coming to property at 1E number, we must companyfess at the outset that during the companyrse of argument at one time, we thought that this property having been sold in the year 1947 by plaintiff number 1, the right to A.I.R. 1934 Privy Council,177 A.I.R. 1968 Madhya Pradesh, 81. A.I.R. 1970 Bombay, 412. the property was number extinguished under section 28 of the Limitation Act in the year 1955. Therefore, although the suit was instituted in the year 1961, beyond 12 years of 1947, it would perhaps be saved under section 52A from the bar of limitation. But on a closer scrutiny and on appreciation of the argument of the other side in the light of the finding recorded by the High Court, we did number feel persuaded to give relief to the appellants even in regard to property at 1E. The High Court has found that plaintiff number 1 had acquired, title to property 1E by adverse possession long before 1947. He dealt with this property as his own. Even when the trust was declared as a Public Trust by the Charity Commissioner in or about the year 1954, the property at 1E was number shown as a trust property. The sale, therefore, in the year 1947 by plaintiff number 1 companyveyed a good title to the purchaser. The lost right to this property long before 1947 companyld number be saved and revived in the year 1955 or 1961 by section 52A of the Act. We, therefore, hold in agreement with the High Court that the suit was barred by limitation in regard to this property also.

ORIGINAL JURISDICTION Writ Petitions Nos. 76, 217 to 228 of 1960. Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights. V. Viswanatha Sastri and T. V. R. Tatachari, for the petitioners In petitions Nos. 76, 87, 93-104 and 217-228 of 1960 . V. R. Tatachari, for the petitioners In petitions Nos. 72 and 229-233 of 1960 . Narasaraju, Advocate General for the State of Andhra Pradesh, P. R. Ramchandra Rao and T. M. Sen, for the respondents In all the petitions . 1960. September 8. The Judgment of the Court was delivered by SUBBA RAO J.-These petitions are filed under Art. 32 of the Constitution for the enforcement of the petitioners fundamental right to carry on the business of motor transport in West Godavari District in the State of Andhra Pradesh by the issuance of writs of certiorari or any other appropriate writs, orders or directions to quash the schemes of road transport services as finally approved by the Government of Andhra Pradesh on March 21, 1960, and for other incidental reliefs. In exercise of the powers companyferred by s. 68C of the Motor Vehicles Act IV of 1939 , as amended by the Central Act 100 of 1956, hereinafter called the Act , Shri Guru Pershad, the Chief Executive Officer, Andhra Pradesh State Road Transport Corporation, hereinafter called the Transport Corporation published seven proposals dated December 7, 1959, in the Andhra Pradesh Gazette dated December 17, 1959, propounding seven schemes for the nationalization of the road transport in respect of different parts of West Godavari District in that State. Under that numberification objections from the public and affected parties were invited to be filed within 30 days of the publication thereof More than 3000 objections were received by the Government against the said schemes. After companysidering the objections, the Government issued numberices to the objectors or their representatives and the representatives of the Transport Corporation informing them of the time, place and the dates of hearing. On the numberified dates, namely, March 10, 11 and 12, 1960, 200 objectors were present and most of them were represented by Advocates. The Transport Corporation was also represented by its Chief Executive Officer and its legal advisers. The Minister in charge of the portfolio of transport held an enquiry, companysidered the companyflicting arguments advanced, gave definite findings on the points urged, rejected all the objections but one and approved the schemes with a slight modification. The seven schemes were directed to be put in force from different dates which were given in the order made by the Minister. The aggrieved operators who were number satisfied with the order of the Minister filed the present petitions for the said reliefs. Shri A. V. Viswanatha Sastri, learned companynsel for the petitioners, raised before us the following points. The provisions of Ch. IVA of the Act are ultra vires the powers of Parliament because they are within the exclusive legislative field of the States. 2 The provisions of Ch. IVA of the Act infringe the fundamental rights of the petitioners under Art. 19 1 g of the Constitution and are number saved by el. 6 of the said Article. 3 The provisions of Ch. IVA are also violative of Art. 14 of the Constitution. 4 The order of the Government companyfirming the schemes is vitiated by the doctrine of bias and, therefore, void. 5 Though in fact seven schemes are framed, in effect they are companyponent parts of one scheme and that device has been adopted to circumvent the judgment of this Court in Srinivasa Reddy v. The State of Mysore 1 . 6 The schemesare void inasmuch as they area prepared and published by the Chief Executive Officer who was number one of the persons who companyld act on behalf of the Transport Corporation under s. 13 of the Road Transport Corporations Act. 7 The schemes as propounded by the Transport Corporation did number give the number of vehicles proposed to be operated in each route as it should have given under r. 4 of the Andhra Pradesh Motor Vehicles Rules hereinafter called the rules and the modification made by the Minister directing the Transport Corporation to do so does number also companyply with the requirements of the said rule. 8 In exercise of the power companyferred under r. 5 of the-Rules, the State Transport Under, taking companyferred upon itself power to vary the frequency of the services and that rule and the numbere made pursuant thereto are inconsistent with the provisions of the Act and, therefore, void. 9 The proposed schemes include three new routes and that is illegal as the said Transport Undertaking has numberpower to include any new routes in a scheme proposed by it. Though many other questions are raised in the petitions, they are number pressed before us. Learned Advocate General for the State of Andhra Pradesh sought to sustain the schemes as approved by the Minister in their entirety. 1 1960 2 S.C.R. 130. We shall number proceed to deal with the companytentions in the order they were raised. Re. 1 The first companytention does number number merit a detailed companysideration as it has been companysidered and rejected by this Court in H. C. Narayanappa v. The State of Mysore 1 . In that case, after companysidering the question, Shah, J., speaking for this Court, observed We are therefore of the view that Chapter IVA companyld companypetently be enacted by the Parliament under entry No. 21 read with entry No. 35 of the Concurrent List. Nothing further Deed be said on this point. With respect we accept and follow the said decision. Re. 2 The next companytention is based upon Art. 19 of the Constitution. The question is whether Ch. IVA of the Act is saved by Art. 19 6 of the Constitution. If Chiva, which provides for the nationalization of road transport services in the manner prescribed, thereunder is number a permissible legislation companyered by Art. 19 6 , it would certainly offend against the fundamental right of the petitioners to do business in motor transport. The companystitutional validity of Ch. IVA of the Act was raised in Gullapalli Nageswara Rao Andhra Pradesh Road Transport Corporation 2 . There it was argued that Ch. IVA of the Act was a piece of companyourable legislation whose real object was to take over the business of the petitioners therein under the companyer of cancellation of permits in companytravention of Art. 31 of the Constitution and that plea was rejected by this Court. But numberattack was made on the validity of Ch. IVA of the Act on the ground that it infringed the provisions of Art. 19 1 g of the Constitution and was number saved by cl. 6 of the Article. That point is number raised before us. Under Art. 19 1 g , all citizens shall have the right to carry on trade or business. The material part of 6 of Art. 19, as amended by the Constitution First Amendment Act, 1951,reads Nothing in sub-clause g of the said clause shall affect the operation of any existing law in so far 1 1960 3 S.C.R. 742. 2 1959 Supp. 1 S.C.R. 319. as it relates to, or prevent the State from making any law relating to the carrying on by the State, or by a companyporation owned or companytrolled by the State, of any trade, business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. The only question is, how far and to what extent Art. 19 6 secures the validity of Ch. IVA of the Act from attack that it offends against Art. 19 1 g ? Learned companynsel for the Petitioners companytends that Art. 19 6 ii provides only for partial exclusion of citizens, that is, the exclusion of a certain class of persons as a whole and number for partial exclusion of some among the same class. As s. 68C, the argument proceeds, enables the State Transport Undertaking to frame a scheme for excluding some among the same class, the said provision is number saved by Art. 19 6 of the Constitution. Relevant portions of s. 68C of the Act read Where any State transport undertaking is of opinion that it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, companyplete, or partial, of other persons or otherwise Under this section a scheme may be framed in respect of road transport service in general or in respect of a particular class of such service empowering the State Transport Undertaking to run the said service it may be in relation to any area or route or a portion thereof it may also be to the exclusion of all or some of the persons running the said service in general or a particular class of it. The section enables the State to take over particular class of a service, say, the bus service, and exclude all or some of the persons doing business in that class of service. Learned companynsel says that this section companyfers a wide power beyond the permissible limits of Art. 19 6 ii of the Constitution. To state it differently, the argument is that while Art. 19 6 ii does number enable a partial exclusion of some among the same class of service, s. 68C permits the said exclusion. The answer to this argument depends upon the true meaning of the provisions of the said Article. Under sub-cl. ii of Art. 19 6 , the State can make a law relating to the carrying on by the State or by a companyporation owned or companytrolled by the State, of any particular business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. Article 19 6 is only a saving provision and the law made empowering the State to carry on a business is secured from attack on the ground of infringement of the fundamental rights of a citizen to the extent it does number exceed the limits of the scope of the said provision. Sub-clause ii is companyched in very wide terms. Under it the State can make law for carrying on a business or service to the exclusion, companyplete or partial, of citizens or otherwise. The law, therefore, can provide for carrying on a service to the exclusion of all the citizens it may, exclude some of the citizens only it may do business in the entire State or a portion of the State, in a specified route or a part thereof The word service is wide enough to take in number only the general motor service but all the species of motor service. There are, therefore, numberlimitations on the States power to make laws companyferring monopoly on it in respect of an area, and person or persons to be excluded. In this view, it must be held that s. 68C does number exceed the limits prescribed by Art. 19 6 ii of the Constitution. Re. 3 The next companytention is that the provisions of Ch. IVA of the Act, and particularly those of s. 68C thereof, offend against Art. 14 of the Constitution. The argument is that Ch. IVA enables the State to make a discrimination between the State Road Transport Corporation on the one hand and private operators and private transport undertakings on the other, and also to make a similar discrimination between the private operators or the private transport undertakings, and that this discrimination is left to the arbitrary discretion of the Transport Corporation. It is true that the provisions of this Chapter enable a scheme to be framed companyferring a monopoly on the State in respect of transport services to the partial or companyplete exclusion of other persons. However, the provisions of the scheme do number make any distinction between individuals operating a transport service and private transport undertakings they are all treated as one class and the classification is only made between the State Transport Undertaking and private transport undertakings, whether the business is carried on by individuals or firms or companypanies. The only question, therefore, is whether such a classification offends against the equality clause of the Constitution. Article 14 says The State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. This doctrine of equality has been so frequently companysidered by this Court that it does number require any further companysideration. It has been held that this Article does number prohibit reasonable classification for the purpose of legislation, but such a classification cannot be arbitrary but must be based upon differences which have rational relation to the object sought to be achieved. Doubtless in the present case, the Legislature placed the State Transport Undertaking in a class different from other undertakings. The question is whether the classification made in Ch. IVA of the Act is just and has reasonable relation to the object of the legislation. The object of Ch. IVA, as disclosed by the provisions of s. 68C, is to provide in the interest of the public an efficient, adequate, economical and properly companyrdinated road transport service. To achieve that object s. 68C companyfers a power on the State Transport Undertaking to prepare a scheme to run the service, whether to the exclusion, companyplete or partial, of other persons or otherwise. The classification has certainly reasonable nexus to the object sought to be achieved. Ordinarily a State Transport Undertaking, companypared with per. sons or private undertakings, should be in a better Position than others to carry on the said services for the benefit of the public administratively, financially and technically it can be expected to be in a far better position than others. It can provide more well equipped buses, give better amenities to the travelling public, keep regular timings, repair or replace the buses in emergencies. It may also employ efficient supervisory staff to keep things going at an appreciably high standard. We are number suggesting that there are numberindividuals or private companypanies who can efficiently run the service. But the State, companypared with individuals, should certainly be in a better position to achieve the object, namely, to improve the road transport service in all its diverse aspects. In such a situation, when the legislature, which must be presumed to understand and companyrectly appreciate the needs of its own people, makes a classification between a State Transport Undertaking and others carrying On the business of transport services, we cannot say that there is numberreasonable basis for such a classification. But it is said that s. 68C of the Act and other provisions of Ch. IVA thereof companyfer an arbitrary power upon the State Transport Undertaking to discriminate between individuals and the said Undertaking between individuals and private undertakings, and between individuals and individuals. But the scheme of Ch. IVA, which has been companysidered by this Court in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation 1 , evolves a machinery for keeping the State Transport Undertaking within bounds and from acting in an arbitrary manner, for s. 68C lays down the legislative policy in clear and understandable terms and the State Transport Undertaking can initiate a scheme only for providing an efficient, adequate, economical and properly companyrdinated road transport service. Another companydition which it lays down is that the scheme is necessary in the public interest. The scheme so framed is published, with allnecessary particulars, in the official Gazette and also in such manner as the State Government may direct persons affected by the scheme may file objections within the prescribed time the State Government, after companysidering the objections and 1 1959 Supp. 1 S.C.R. 319. giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be beard in the matter, may approve or modify the scheme the scheme so approved or modified is published. The rules framed under the Act provide for personal hearing. If the State Transport Undertaking seeks to modify a scheme, it will have to follow the same procedure before doing so see as. 68C, 68D and 68E of the Act. It will be seen from the provisions of Ch. IVA of the Act that the State Transport Undertaking, before propounding a scheme, arrives at the decision on objective criteria. The parties affected and the public are given every opportunity to place their objections before the Government, and the Government, after following the prescribed quasijudicial procedure, companyfirms or modifies the scheme. The scheme, before it is finalised, is subjected to public gaze and scrutiny and the validity and appropriateness of the provisions are tested by a quasi-judicial process. The Government cannot be equated to a Court but the procedure prescribed accords with the principles of natural justice. It is said that the State Transport Undertaking is either the State Government or a companyporation, owned or companytrolled by the State, and as such the entire quasi-judicial procedure prescribed is only a cloak to screen the exercise of an absolute and arbitrary power on the part of the Government. We cannot say that Ch. IVA is such a device. The Legislature made a sincere attempt to protect as far as possible individual rights from the arbitrary acts of the executive. Once it is companyceded that Ch. IVA of the Act is companystitutionally good and that the Legislature can validly make law for nationalization of the road transport service, the procedure laid down for implementing the said policy cannot, in our view, be said to be unreasonable. If in any particular case the mala fides of the authorities companycerned and companylusion between the State Transport Undertaking and the State Government to deprive particular persons of their right to do road transport business or to drive out particular persons from the trade on extraneous companysiderations, are established, that may be a ground for striking down that particular scheme. But the provisions of Ch. IVA cannot be struck down on the ground that they companyfer an arbitrary power on the State Transport Undertaking and on the State Government to discriminate between individuals and the State Transport Undertaking, between individuals and private undertakings, and between individuals and individuals. This question was raised in Saghir Ahmad v. The State of U. P. 1 . That case dealt with the provisions of the U. P. Road Transport Act, 1951 U. P. Act II of 1951 . Under s. 42 3 of that Act the Government was exempt from taking permits for its own vehicles and it companyld run any number of buses as it liked without the necessity of taking out permits for them. In furtherance of the State policy to establish a companyplete State monopoly in respect of road transport business, the transport authorities began number only to cancel the permits already issued to private operators but also refused to issue permits to others, who would other. wise be entitled to them. The companystitutional validity of that section was questioned. It may also be mentioned that though that decision was given after the Constitution First Amendment Act, 1951, it was number based upon that amendment, as the Constitution before the amendment governed the rights of the parties therein. In that situation, adverting to the argument based upon Art. 14 of the Constitution, Mukherjea, J., as he then was, made the following observations at p. 731 There is numberdoubt that classification is inherent in the companycept of a monopoly and if the object of legislation is to create monopoly in favour of the State with regard to a particular business, obviously, the State cannot but be differentiated from ordinary citizens and placed in a separate category so far as the running of the business is companycerned and this classification would have a perfectly rational relation to the object of the statute., Section 3 of that Act provided that where the State 1 1955 1 S.C.R. 707. Government is satisfied that it is necessary, in the interest of general public and for subserving the companymon good, so to direct, it may declare that the Road Transport Services in general, or any particular class of such service on any route or portion thereof, shall be run and operated by the State Government exclusively or by the State Government in companyjunction with railway or partly by the State Government and partly by others in accordance with the provisions of this Act It was companytended therein that, as the State companyld choose any and every person it liked for the purpose of being associated with the transport service and as there were numberrules to guide its discretion, that provision would offend against Art. 14 of the Constitution. It was pointed out on behalf of the State that the discretion under s. 3 of that Act was number uncontrolled as that companyld Only be done by granting of permits in accordance with the provisions of the Motor Vehicles Act. Accepting the companystruction suggested, this Court held that the discretion to be exercised by the State would be a, regulated discretion guided by statutory rules. But in the instant case, numberliberal companystruction of the provisions need be resorted to, for Ch. IVA of the Act in specific terms provides a companyplete and, in the circumstances, satisfactory machinery for reasonably regulating the exclusion of all or some of the private operators from the numberified area or route. We, therefore, hold that the provisions of Ch. IVA of the Act do number infringe the equality clause enshrined in Art 14 of the Constitution. Re. 4 By the next companytention the learned companynsel attacks the validity of the scheme on the ground that the Government is actuated by bias against the private operators of buses in West Godavari District, and indeed had predetermined the issue. In the petitions it was alleged that the Government had companyplete companytrol over the Road Transport Corporation that the entire administration and companytrol over such road transport undertaking vested in the Government, that the Chief Secretary to the Government of Andhra Pradesh was its chairman and that, therefore, the entire scheme, from its inception to its final approval, was really the act of the Government. On this hypothesis it was companytended that the Government itself was made a judge in its own cause and that, therefore, its decision was vitiated by legal bias. That apart, it was also pleaded that a subcompanymittee, companysisting of Ministers, Secretaries and officers of companynected departments and presided over by the Minister in charge of transport, decided in its meeting of January 28, 1960, that under the scheme of nationalization of bus service, the State Government would take over the bus services in West Godavari District and Guntur District before the end of that year and, therefore, the Minister in charge of the portfolio of transport, he having predetermined-the issue, disqualified himself to decide the dispute between the State Transport Undertaking and the petitioners. The self same questions were raised in Gullapalli Nagestvara Rao v. The State of Andhra Pradesh 1 . There, as in this case, it was companytended that the Chief Minister, who was in charge of the portfolio of transport, companyld number be a judge in his own cause, as he was biased against the private operators. This Court pointed out the distinction between official bias of an authority which is inherent in a statutory duty imposed on it and personal bias of the said authority in favour of, or against, one of the parties. In dealing with official bias this Court, after companysidering the relevant English decisions, observed at p. 587 thus These decisions show that in England a statutory invasion of the companymon law objection on the ground of bias is tolerated by decisions, but the invasion is companyfined strictly to the limits of the statutory exception. It is number out of place here to numberice that in England the Parliament is supreme and therefore a statutory law, however repugnant to the principles of natural justice, is valid whereas in India the law made by Parliament or a State Legislature should stand the test of fundamental rights declared in Part III of the Constitution. 1 1960 1 S.C.R. 580. Then this Court proceeded to state that the provisions of the Act did number sanction any dereliction of the principles of natural justice, for the Act visualized in case of companyflict between the undertaking and the operators of private buses that the State Government should sit in judgment and resolve the companyflict. Much to the same effect has been stated by Shah, J., in H. C. Narayanappa v. The State of Mysore 1 though in slightly different phraseology. The learned Judge stated It is also true that the Government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the ,authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is number open to challenge on a presumption of bias. The Minister or the officer of the Government who is invested with the power to hear objections to the scheme is acting in his official capacity and unless there is reliable evidence to show that he is biased, his decision will number be liable to be called in question, merely because he is a limb of the Government. In the above cases the transport department of the Government was the transport undertaking, but here the State Road Transport Corporation, which is a body companyporate having a perpetual succession and companymon seal, is the transport authority. Though under the provisions of the Act, the State Government has some companytrol, it, cannot be said either legally or factually that the said Corporation is a department of the State Government. The State Government, therefore, in deciding the dispute between the said undertaking and the operators of private buses is only discharging its statutory functions. This objection, therefore, has numbermerits. Nor can we say that it has been established that the Minister in charge of the portfolio of transport has been actuated by personal bias. The fact that he presided over the sub-committee companystituted to implement the scheme of nationalization of bus services in the West Godavari District does number in 1 1960 3 S.C.R. 742. itself establish any such bias. Indeed, in the companynter affidavit filed on behalf of the first respondent the companytents and authenticity of the reports of the proceedings of the sub-committee published in the Telu daily Andhra Pradesh were number admitted. Even if the sub-committee came to such a decision, it is number possible to hold that it was a final and irrevocable decision in derogation of the provisions of the Act. it was only a policy decision and in the circumstances companyld only mean that the sub-committee advised the State Government to implement the policy of nationalization of bus services in that particular district. The said decision companyld number either expressly or by necessary implication involve a predetermination of the issue it can only mean that the policy would be implemented subject to the provisions of the Act. It is number suggested that the Minister in charge of the companycerned portfolio has any personal bias against the operators of private buses or any of them. We, therefore, hold that it has number been established that the Minister in charge of the portfolio of transport bad personal bias against the operators of private buses and, therefore, disqualified himself from hearing the objections under Ch. IVA of the Act. Re. 5 The next companytention is based upon the observations of this Court in Shrinivasa Reddy v. The State of Mysore 1 . After elaborating on the scope of s. 68C of the Act, Wanchoo, J., observed at p. 136 thus Therefore, the scheme to be framed must be ,such as is capable of being carried out all at once and that is why the Undertaking has been given the power to frame a scheme for an area or route or even a portion thereof If the Undertaking at that stage has the power to carry it out piecemeal, it would be possible for it to abuse the power of implementation and to discriminate against some operators and in favour of others included in the scheme and also to break up the integrity of the scheme and in a sense modify it against the terms of s. 68E. Based on these observations it is companytended that the State Government intended to frame only one scheme 1 1960 2 S C.R. 130. for the entire district though it was number in a position to implement the scheme in the entire district at one and the same time, but to circumvent the observations of this Court it had split up one scheme into seven schemes. The first respondent in its companynter affidavit met this allegation in the following way Having regard to the resources of the Undertaking in men, material and money, each scheme has been so framed that it is capable of being carried out all at once, and in full, without breaking its integrity The State Transport Undertaking will carry out each of the published schemes on a date fixed by the State Government for the implementation of each scheme. The Minister in his order also adverted to this aspect and observed In this case, seven different schemes have been framed. Each scheme is a separate and independent scheme by itself In terms of the numberification, each scheme after approval will companye into force only from a date to be, fixed by the Government. Though different dates may be fixed for each scheme, each scheme will be implemented in its entirety. No piecemeal implementation of any one scheme will be done . Indeed the order of the Minister fixed specific dates from which each of the schemes shall companye into force. This Court did number lay down that there cannot be any phased programme in the nationalization of transport services in a State or in a district number did it hold that there cannot be more than one scheme for a district or a part of a district. The observations of this Court in regard to the implementation of a scheme piecemeal were aimed at to prevent an abuse of power by discriminating against some operators and in favour of others in respect of a single scheme. In the present case, seven schemes were framed number to circumvent the observations of this Court, but only to avoid the vice inherent in piecemeal implementation. Not only seven separate schemes were framed in respect of separate areas of the district, but also the Government made it clear that each scheme should be implemented in its entirety companymencing from different dates. We do number, therefore, see any legitimate objection to the framing of seven separate, schemes. Re. 6 This companytention questions the validity of the schemes on the ground that the Chief Executive Officer of the Andhra Pradesh Road Transport Corporation is number empowered to publish the schemes and, therefore, the schemes were number validly published. In exercise of the powers companyferred by S. 68C of the Act, the Andhra Pradesh State Road Transport Corporation proposed the schemes and published them in the Andhra Pradesh Gazette, Part 11, p. 1310. The proposed schemes were signed by Guru Pershad, Chief Executive Officer, State Transport Undertaking, Andhra Pradesh Road Transport Corporation, The relevant provisions of the Road Transport Corporations Act, 1950 Act LXIV of 1950 may be numbericed at this stage. Under s. 4 of the said Act, Every Corporation shall be a body companyporate by the name numberified under section 3 having perpetual succession and a companymon seal, and shall by the said name sue and be sued . Relevant portions of s. 12 read A Corporation may from time to time by resolution passed at a meeting authorize the Chief Executive Officer or General Manager, or any other officer of the Corporation subject to such companyditions and limitations if any as may be specified in the resolution to exercise such powers and perform such duties as it may deem necessary for the efficient day to day administration of its business. Section 13 says All orders and decisions of a Corporation shall be authenticated by the signature of the Chairman or any other member authorized by the Corporation in this behalf and all other instruments issued by a Corporation shall be authenticated by the signature of the Chief Executive Officer or General Manager or any other officer of the Corporation authorized in like manner in this behalf. Relying upon the said provisions, learned companynsel for the petitioners companytends that the preparation and publication of the schemes in question under s. 68C of the Act are orders or decisions of the Corporation and, therefore, should be authenticated by the signature of the Chairman or any other member duly authorized under s. 13 of the Road Transport Corporations Act and number by the Chief Executive Officer. The first respondent in its companynter-affidavit attempted to meet this companytention by stating that the Corporation by resolution authorized the Chief Executive Officer to exercise such powers and perform such duties as it may deem necessary for the efficient day to day administration of its business and the Chief Executive Officer in exercise of such authorization published the schemes in the Gazette. The first respondent relied upon s. 12 of the Road Transport Corporations Act and number on s. 13 thereof to sustain the power of the Chief Executive Officer to publish the schemes. We have numberreason number to accept the statement of the first respondent that there was a resolution passed by the Corporation in terms of s. 12 c of the Road Transport Corporations Act. If so, the only question is whether the act of publishing the proposed schemes framed by the Corporation in the Gazette pertains to the day to day administration of the Corporations business. The Chief Executive Officer has numberpower under the Act to frame a scheme. Section 68C empowers only the State Transport Undertaking to prepare a scheme and cause every such scheme to be published in the official Gazette and also in such other manner as the State Government may direct. The scheme, therefore, need number be directly published by the Corporation, but it may cause it to be published in the official Gazette. The act of publishing in the official Gazette is a ministerial act. It does number involve any exercise of discretion. It is only a mechanical one to be carried out in the companyrse of day to day administration. So understood, there cannot be any difficulty in holding that it was purely a ministerial act which the Chief Executive Officer by reason of the aforesaid resolution can discharge under s. 12 c of the Road Transport Corporations Act. It must be presumed for the purpose of this case that the Corporation decided the terms of the proposed schemes and the said decision must have been duly authenticated by the Chairman or any other member authorized by the Corporation in this behalf and the Chief Executive Officer did numberhing more than publish the said scheme in exercise of its administrative functions. We, therefore,, hold that the Chief Executive Officer was well within his rights in publishing the said proposed schemes in the Andhra Pradesh Gazette. Re. 7 The next argument turns upon the provisions of r. 4 of the Andhra Pradesh Motor Vehicles Rules. The relevant part of the rule reads The scheme or approved scheme to be published in the official Gazette as required under section 68C or 68D as the case may be, shall companytain the following particulars i ii the number of vehicles proposed to be operated on each route . In certain schemes the number of vehicles to be operated on each route was number specified, and one number was mentioned against two or more routes bracketing them. When an objection was taken before the Government in regard to this matter, the Minister accepted it and directed that the scheme might be modified so as to indicate the number of vehicles to be operated on each route separately. The schemes were accordingly modified by indicating the number of vehicles to be operated on each route separately and the approved schemes with the said modification were duly published in the Gazette dated March 21, 1960. The approved schemes, therefore, satisfy rule 4 2 ,of the Rules, for the approved schemes, as duly modified, companytain the number of vehicles proposed to be operated on each route. But the point sought to be made is that the Minister himself should have fixed the number of vehicles proposed to be operated on each route and should number have merely directed the appropriate modification to be made in the approved schemes. It does number appear from the record that there was any dispute before the Minister as regards the apportionment of the number of vehicles shown against two or more routes to each of the routes but the only companytention raised was that the bracketing of the number of vehicles between two or more routes companytravened the provisions of r. 4. Though the order of the Minister only companytains a direction, the apportionment of the vehicles, between the routes was number made by the State Transport Authority, but only by the Government, for the approved schemes were published number by the Chief Executive Officer but by the State Government. It must be presumed that the allocation also must have been made with the approval of the Minister. There are numbermerits in this objection either. Re. 8 The next companytention is that r. 5 framed by the State Government in exercise of the power companyferred on it under s. 68 1 is inconsistent with the provisions of s. 68B of the Act and, therefore, is void. The schemes prepared by the State Transport Authority companytain the following numbere The frequency of services on any of the numberified routes or within any numberified area shall, if necessary, be varied having regard to the traffic needs during any period . Indeed the said numbere was practically a reproduction of a numbere appended to r. 5. The only question is whether r. 5 and the numbere made pursuant thereto companye into companyflict with s. 68E of the Act. Section 68E reads Any scheme published under sub-section 3 of section 68D may at any time be cancelled or modified by the State transport undertaking and the procedure laid down in section 68C and section 68D shall, so far as it can be made applicable, be followed in every case where the scheme is proposed to be modified as if the modification proposed were a separate scheme. The short question that arises is whether the variation of frequency of service by the State Transport Undertaking amounts to a modification of a scheme within the meaning of s. 68E of the Act. The rule is number so innocuous as the learned Advocate-General of the Andhra Pradesh companytends. Under that rule the State Transport Undertaking, having regard to the needs of traffic during any period, may increase or decrease the number of trips of the existing buses or vary the frequency by increasing or decreasing the number of buses. This can be done without any reference to the public or without hearing any representations from them. This increase or decrease, as the case may be, Can only be for the purpose of providing an efficient, adequate, economical transport service in relation to a particular route within the meaning of s. 68C. At the time the original schemes are proposed, the persons affected by them may file objections to the effect that the number of buses should be increased or decreased on a particular route from that proposed in the schemes. The Government may accept such suggestions and modify the schemes but under this rule the authority may, without reference to the public or the Government, modify the schemes. Learned companynsel companytends that the numbere only provides for an emergency. But the rule and the numbere are companyprehensive enough to take in number only an emergency but also a modification of the scheme for any period which may extend, to any length of time. We are, therefore, definitely of opinion that the rule companyfers power on the State Transport Undertaking to modify substantially the scheme in one respect, though that power can only be exercised under s. 68E of the Act in the manner prescribed thereunder. This rule is void and, therefore, the said numbere was illegally inserted in the schemes. But on that ground, as the learned companynsel companytends, we cannot hold that the schemes are void. The numbere is easily severable from the scheme, without in any way affecting their structure. Without the numbere the schemes are self-contained ones and it is impossible to hold that the schemes would number have been framed in the manner they were made if this numbere was number allowed to be included therein. We, therefore, hold that the numbere should be deleted from the schemes and the schemes are otherwise good. Re. 9 The last of the arguments attacks the schemes in so far as they include new routes. The new routes included in the schemes are Eluru to Kovvur, and Nidadavol to Jeelugumilli. It is argued that the provisions of s. 68C are companycerned with the existing routes only. Support is sought to be drawn for this companytention from the provisions of s. 68C of the Act. The relevant part of that section says Where any State transport undertaking is of opinion that it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking the State transport undertaking may propose a scheme . Now the companytention is that the word route in that section refers to a preexisting route, for it is said that the words route or portion thereof in the section clearly indicate that the route is an existing route, for a scheme cannot be framed in respect of a portion of a proposed route. We do number see any force in this companytention. Under s. 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. There is numberinherent inconsistency between an area and a route . The proposed route is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of s. 68C. We, therefore, hold that s. 68C certainly empowers the State Transport Undertaking to propose a scheme to include new routes. Though some other points were raised in the affidavits filed before us, they were number pressed. In the result we hold that the numbere relating to the frequency of the services appended to the schemes must be deleted and that in other respects the petitions fail and accordingly they are dismissed with companyts.

Markandey Katju, J. Leave granted. Shera was the symbol of the recent Commonwealth Games, but ironically Shera has been almost exterminated in our companyntry. The Sher Khan of Rudyard Kiplings Jungle Book, which once abounded in India, is rarely to be seen today. This case reveals how avaricious and rapacious persons have by organized crime destroyed large parts of the wild life of India and brought many animals e.g. tigers, leopards, bison, etc. almost to the brink of extinction, thereby seriously jeopardizing and destroying the ecological chain and ecological balance in our environment. The appellant herein has been companyvicted under the Wildlife Protection Act, 1972 by all the three companyrts below and number he is in appeal before us. Before dealing with the facts of this case, we would like to companyment upon the background. India, at one time, had one of the richest and most varied fauna in the world. However, over the last several decades there has been rapid decline of Indias wild animals and birds which is a cause of grave companycern. Some wild animals and birds have already become extinct e.g. the cheetah and others are on the brink of extinction. Areas which were once teeming with wild life have become devoid of it, and many sanctuaries and parks are empty or almost empty of animals birds. Thus, the Sariska Tiger Reserve in Rajasthan and the Panna Tiger Reserve in Madhya Pradesh today have numbertigers. One of the main causes for this depredation of the wild life is organized poaching which yields enormous profits by exports to China and other companyntries. Article 48A of the Constitution states as follows 48A. Protection and improvement of environment and safeguarding of forest and wild life. - The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the companyntry. Article 51A g of the Constitution states that it is the duty of every citizen of India to protect and improve the natural environment including the wild life. The Wildlife Protection Act, 1972 was enacted for this companystitutional purpose. Chapter III of the said Act prohibits hunting of wild animals except in certain limited circumstances. Chapter IV enables the State Government to declare any area as a sanctuary or national park, and destruction or removal of animals from those areas is prohibited except under very limited circumstances. Chapter V VA prohibits trade or companymerce of wild animals, animal articles or trophies. Chapter VI makes violation of the provisions of the Act a criminal offence. By the Wildlife Protection Amendment Act, 2002 the punishment has been increased vide Section 51 as amended, and the property derived from illegal hunting and trade is liable to forfeiture vide Chapter VIA. Before dealing with the facts of this case, we may companysider why preservation of wild life is important for human society. Preservation of wild life is important for maintaining the ecological balance in the environment and sustaining the ecological chain. It must be understood that there is inter-linking in nature. To give an example, snakes eat frogs, frogs eat insects and insects eat other insects and vegetation. If we kill all the snakes, the result will be that number of frogs will increase and this will result in the frogs eating more of the insects and when more insects are eaten, then the insects which are the prey of other insects will increase in number to a disproportionate extent, or the vegetation will increase to a disproportionate extent. This will upset the delicate ecological balance in nature. If we kill the frogs the insects will increase and this will require more insecticides. Use of much insecticide may create health problems. To give another example, destruction of dholes wild dogs in Bhutan was intended to protect livestock, but this led to greater number of wild boar and to resultant crop devastation causing several cases of abandonment by humans of agricultural fields. Destruction of carnivorous animals will result in increase of herbivorous animals, and this can result in serious loss of agricultural crops and other vegetation. It must be realized that our scientific understanding of nature, and in particular of the ecological chain and the linkages therein is still very primitive, incomplete and fragmentary. Hence, it is all the more important today that we preserve the ecological balance because disturbing it may cause serious repercussions of which we may have numberidea today. As already stated above, the wild life in India has already been companysiderably destroyed. At one time there were hundreds of thousands of tigers, leopards and other wild animals, but today there are only about 1400 tigers left, according to the Wildlife Institute. Until recently habitat loss was thought to be the largest threat to the future of tigers, leopards etc. However, it has number been established that illegal trade and companymerce in skins and other body parts of tigers, leopards etc. has done even much greater decimation. Poaching of tigers for traditional Chinese medicine industry has been going on in India for several decades. Tigers and leopards are poached for their skins, bones and other companystituent parts as these fetch high prices in companyntries such as China, where they are valued as symbols of power aphrodisiacs and ingredients of dubious traditional medicines. This illegal trade is organized and widespread and is in the hands of ruthless sophisticated operators, some of whom have top level patronage. The actual poachers are paid only a pittance, while huge profits are made by the leaders of the organized gangs who have international companynection in foreign companyntries. Poaching of wild life is an organized international illegal activity which generates massive amount of money for the criminals. Interpol says that trade in illegal wild life products is worth about US 20 billion a year, and India is number a major source market for this trade. Most of the demand for wildlife products companyes from outside the companyntry. While at one time there were hundreds of thousands of tigers in India, today according to the survey made by the Wildlife Institute of India an autonomous body under the Ministry of Environment and Forests , there were only 1411 tigers left in India in 2008. There are numberreliable estimates of leopards as numberproper census has been carried out, but the rough estimates show that the leopard too is a critically endangered species. There is virtually numbermarket for the skins or bones of tigers and leopards within India. The evidence available points out that tigers and leopards, poached in the Indian wilderness, are then smuggled across the border to meet the demand for their products in neighbouring companyntries such as China. When dealing with tiger and leopard poachers and traders, it is therefore important to bear in mind that one is dealing with trans-national organized crime. The accused in these cases represents a link in a larger criminal network that stretches across borders. This network starts with a poacher who in most cases is a poor tribal and a skilled hunter. Poachers kill tigers and leopards so as to supply the orders placed by a trader in a larger city centre such as Delhi. These traders are very wealthy and influential men. Once the goods reach the trader, he then arranges for them to be smuggled across the border to his companynterpart in another companyntry and so on till it reaches the end companysumer. It is impossible for such a network to sustain itself without large profits and intelligent management. Under the Wildlife Protection Act, 1972, trading in tiger, leopard and other animal skins and parts is a serious offence. Apart from that, India is a signatory to both the UN Convention on International Trade in Endangered Species CITES and the UN Convention against Transnational Organized Crime CTOC . However, despite these National and International laws many species of wildlife e.g. tigers, leopards, bison etc. are under threat of extinction, mainly due to the poaching organized by international criminal traders and destruction of the habitats. Sansar Chand, the appellant before us has a long history of such criminal activities, starting with a 1974 arrest for 680 skins including tigers, leopards and others. In the subsequent years the appellant and his gang has established a companyplex, interlinking smuggling network to satisfy the demand for tiger and leopard parts and skins outside Indias borders, particularly to China. It is alleged that the appellant and his gang are accused in 57 wildlife cases between 1974 and 2005. Sansar Chand the appellant herein has a long history of involvement with wildlife crime. A brief account of the same is given below In a seizure dated 11.09.1974 having criminal case No. 20/3 Sansar was held guilty by the Court of Shri H.P. Sharma ACMM, Delhi on 1.8.1981 and sentenced on 3.8.1981 to rigorous imprisonment for one year and six months. This Court vide its judgment dated 13.5.1994 ordered the release of Sansar Chand on the ground that he was a juvenile on the date of the offence and his sentence be companysidered to have undergone. In another seizure dated 20.11.1974 he was held guilty and sentenced to pay a fine of Rs. 20,000/-. The third companyviction of Sansar Chand was by the Special Railways Court vide its order dated 20.4.2004 which was pleased to award Sansar Chand rigorous imprisonment for 5 years. The said judgment has been subsequently affirmed by the Sessions Court on 19.10.2006 and the High Court of Rajasthan vide its order dated 10.12.2008 against which Sansar Chand has preferred this special leave petition. In addition to the above there are other cases pending against the appellant which provide details of his pending cases in various Courts and which were admitted by him in his statement under Section 313 Cr.P.C. and which are Ex. P- 46 and P-47. These exhibits show the extent of involvement of Sansar Chand in wildlife crime. In order to highlight the extent of the organized nature of wildlife crimes being companymitted by the appellant, it is important to mention here that it is number just Sansar Chand, but other members of his family and associations who are also involved in the illegal trade in wildlife. It is alleged that the appellants younger brother Narayan Chand is mentioned in FIR No. 82/2005, Kamla Market Police Station, New Delhi, involving the seizure of, inter alia, 2 tiger skins, 38 leopard skins and 1 snow leopard skin and has been named as an accused in the companyplaint filed under Section 55 of the Wild Life Protection Act, 1972 in this case. Narayan Chand is also an accused in Court Case No. 1145/2009 being tried before the Additional Chief Judicial Magaistrate, Haldwani, arising from Preliminary Offence Report No. 13/Fatehpur/2008-2009, involving the seizure of 1 tiger skin and a tiger skeleton. Sansar Chands wife Rani and son Akash are accused in the case arising from FIR No. 362/2004, Manak Chowk Police Station, Jaipur, involving the seizure of leopard paws and claws. CBI in the year 2005 invoked MCOCA against Sansar Chand and his family members and associates which case is pending trial in a Delhi Court. The present case is only one of the cases in which the appellant has been accused. The facts of the case have been set out in detail in the judgment of the High Court and hence we are number repeating the same here. Briefly stated, on January 5, 2003 the police arrested one Balwan who was traveling in a train with a carton companytaining leopards skin. During investigation the said Balwan on January 7, 2003 made a disclosure statement to the SHO, GRP Bhilwara that the two leopard skins were to be handed over to Sansar Chand at Sadar Bazar, Delhi. The appellant was charge sheeted and after trial he was companyvicted by the Additional Chief Judicial Magistrate Railways , Ajmer, Rajasthan by his judgment dated 29.4.2004. The appellant filed an appeal which was dismissed by the Special Judge, SC ST Prevention of Atrocities Cases, Ajmer vide his judgment dated 19.8.2006. Thereafter the appellant filed a Revision Petition, which was dismissed by the Rajasthan High Court by the impugned judgment dated 10.12.2008. Hence, this appeal. Thus, all the companyrts below have found the appellant guilty of the offences charged. Learned companynsel for the appellant submitted that the prosecution case is solely based on the extra judicial companyfession made by companyaccused Balwan vide Ex.P-33. We do number agree. Apart from the extra judicial companyfession of Balwan there is a lot of other companyroborative material on record which establishes the appellants guilt. It must be mentioned that persons like the appellant are the head of a gang of criminals who do illegal trade in wildlife. They themselves do number do poaching, but they hire persons to do the actual work of poaching. Thus a person like the appellant herein remains behind the scene, and for this reasons it is number always possible to get direct evidence against him. In the companyrts below the prosecution filed a list of pending cases against Sansar Chand, in some of which he has been found guilty and punished. The appellant has been prosecuted by the Wildlife Department in various companyrts as mentioned in the letter of the Deputy Inspector General of Police, CBI, New Delhi to the Inspector General of Police, Jaipur dated October 20, 2004. Ex.P-33 which companytains the companyfession of the appellant, was written by PW-11 Arvind Kumar on the instructions given by the accused Balwan while in custody. Prior to Ex.P-33, Balwan has also disclosed the name of the appellant vide Ex.P-6 on January 6, 2003. In our opinion, Ex.P-33 supported by the evidence of Arvind PW 11 and Ex.P-6 cannot be treated to be companycocted documents which cannot be relied upon. As per the disclosure statement of Balwan the other companyaccused persons were also arrested and articles used for killing and removing skins from the bodies of leopards were also recovered. The accused Balwan was released on bail on 18.01.2003, and thereafter he sent the written companyfession Exh.P-33 on 23.01.2003 during judicial custody at Central Jail, Ajmer. In our opinion it cannot be held that the accused Balwan was under any pressure of the police. The said letter Ex.P-33 dictated by Balwan to Arvind Kumar was directly sent from the Central Jail, Ajmer to the Chief Judicial Magistrates Court, Ajmer. We are of the opinion that the letter P-33 was number fabricated or procured by pressure. The accused Balwan has clearly stated in Exh.P-33that he was paid Rs.5000/- and Rs.10000/- by the appellant. The appellant has several houses in Delhi, purchased in his name and in the name of his wife. It appears that these houses were purchased with the help of gains made out of his illegal activities stated above. Pw-11 Arvind Kumar has stated in his deposition before the Court that he wrote the letter Ex.P-33 at the instance of the accused Balwan. The thumb impression of the accused Balwan is on that letter. At the instance of the appellant one Bhua Gameti was questioned who stated that the panthers skin had been taken by various persons e.g. Khima, Nawa, Kheta Ram, Mohan and Chuna, who were also arrested. At their pointing out the equipment used for hunting the leopard and poaching it were seized. Panthers nails were also recovered from accused Bhura and the guns, cartridges, and knives for removing the skins of panthers were recovered from the accused. There is a large amount of oral and documentary evidence on record which has been discussed in great detail by the learned Magistrate and the learned Special Judge and hence we are number repeating the same here. Thus the appellant has rightly been held guilty beyond reasonable doubt. As already stated above, in such cases it is number easy to get direct evidence, particularly against the leader of the gang like the appellant herein . The appellant, Sansar Chand has been doing this illegal trade for more than 30 years. He is habitual of doing this illegal business of trade in skins and parts of panthers and tigers. He has, as far back as in 1974, companymitted his first crime when he was barely 16 years of age and the companyviction was upheld by the Supreme Court in Criminal Case No. 15 of 2001. A large number of cases are pending against him in Delhi, Uttar Pradesh and Rajasthan. Taking all these materials into account there is numberdoubt that the appellant is guilty of the offence charged. There is numberabsolute rule that an extra judicial companyfession can never be the basis of a companyviction, although ordinarily an extra judicial companyfession should be companyroborated by some other material vide Thimma vs. The State of Mysore - AIR 1971 SC 1871, Mulk Raj vs. The State of U.P. - AIR 1959 SC 902, Sivakumar vs. State by Inspector of Police - AIR 206 SC 563 para 41 42 , Shiva Karam Payaswami Tewar vs. State of Maharashtra - AIR 2009 SC 1692, Mohd. Azad vs. State of West Bengal - AIR 2009 SC 1307.

Arising out of Special Leave Petition Crl. No. 4537/2004 P. MATHUR, J. Delay in filing the special leave petition is companydoned. Leave granted. This appeal has been preferred by the State of M.P. against the judgment and order dated 13.8.2003 of Justice N.S. Azad of M.P. High Court in Crl. Appeal No. 1739 of 2002. The trial Court companyvicted the accused under Section 376 2 g P.C. They were awarded a sentence of 10 years R.I. and a fine of Rs.2000/- and in default to undergo R.I. for a further period of six months. The High Court partly allowed the appeal and while upholding the companyviction of the accused reduced the sentence to the period already undergone which is nearly 8 months. Learned companynsel for the appellant has submitted that the sentence imposed by the High Court is wholly inadequate looking to the nature of the offence and is companytrary to the minimum prescribed by law. Sub-section 1 of Section 376 I.P.C. provides that whoever, except in the cases provided for by sub-section 2 , companymits rape shall be punished with imprisonment of either description for a term which shall number be less than 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. In the category of cases companyered under sub-section 2 of Section 376, the sentence cannot be less than 10 years but which may be for life and shall also be liable to fine. The proviso appended to sub-section 1 lays down that the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years. There is a similar proviso to sub-section 2 which empowers the Court to award a sentence of less than 10 years for adequate and special reasons to be mentioned in the judgment. The High Court in the impugned order has awarded a sentence which is number only grossly inadequate but is also companytrary to express provision of law. The High Court has number assigned any satisfactory reason much less adequate and special reasons for reducing the sentence to a term which is far below the prescribed minimum. Therefore, the sentence awarded by the High Court is clearly illegal. That apart, the High Court has written a very short and cryptic judgment. To say the least, the appeal has been disposed of in a most unsatisfactory manner exhibiting companyplete number-application of mind. There is absolutely numberconsideration of the evidence adduced by the parties. Chapter XXIX of Code of Criminal Procedure deals with APPEALS. Section 384 Cr.P.C. empowers the appellate Court to dismiss an appeal summarily if it companysiders that there is numbersufficient ground for interference. Section 385 Cr.P.C. gives the procedure for hearing appeals number dismissed summarily and Section 386 Cr.P.C. gives the powers of the appellate Court. In Amar Singh v. Balwinder Singh 2003 SCC 518, the duty of the appellate Court while hearing a criminal appeal in the light of the aforesaid provisions was explained and para 7 of the report reads as under The learned Sessions Judge after placing reliance on the testimony of the eye-witnesses and the medical evidence on record was of the opinion that the case of the prosecution was fully established. Surprisingly, the High Court did number at all companysider the testimony of the eye witnesses and companypletely ignored the same. Section 384 Cr.P.C. empowers the Appellate Court to dismiss the appeal summarily if it companysiders that there is numbersufficient ground for interference. Section 385 Cr.P.C. lays down the procedure for hearing appeal number dismissed summarily and sub-section 2 thereof casts an obligation to send for the records of the case and to hear the parties. Section 386 Cr.P.C. lays down that after perusing such record and hearing the appellant or his pleader and the Public Prosecutor, the Appellate Court may, in an appeal from companyviction, reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of companypetent jurisdiction. It is, therefore, mandatory for the Appellate Court to peruse the record which will necessarily mean the statement of the witnesses. In a case based upon direct eye-witness account, the testimony of the eyewitnesses is of paramount importance and if the Appellate Court reverses the finding recorded by the Trial Court and acquits the accused without companysidering or examining the testimony of the eye-witnesses, it will be a clear infraction of Section 386 Cr.P.C. In Biswanath Ghosh v. State of West Bengal Ors. AIR 1987 SC 1155 it was held that where the High Court acquitted the accused in appeal against companyviction without waiting for arrival of records from the Sessions Court and without perusing evidence adduced by prosecution, there was a flagrant mis-carriage of justice and the order of acquittal was liable to be set aside. It was further held that the fact that the Public Prosecutor companyceded that there was numberevidence, was number enough and the High Court had to satisfy itself upon perusal of the records that there was numberreliable and credible evidence to warrant the companyviction of the accused. In State of UP v. Sahai Ors. AIR 1981 SC 1442 it was observed that where the High Court has number cared to examine the details of the intrinsic merits of the evidence of the eye-witnesses and has rejected their evidence on the general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial mis-carriage of justice so as to invoke extraordinary jurisdiction of Supreme Court under Article 136 of the Constitution.

SANTOSH HEGDE, J. The appellant was companyvicted and sentenced by the XXII City Civil Sessions Judge, Bangalore Rural District, Bangalore in SC No.337/91 vide his judgment dated 18.2.1992 for life imprisonment for an offence punishable under Section 302 of the IPC and for a period of 10 years RI for an offence punishable under Section 377 IPC and for 5 years RI under Section 364 of the IPC and another period of 5 years for an offence under Section 201 IPC all the sentences were made to run companycurrently. On appeal, the High Court of Karnataka as per its judgment dated 13.1.1993 in Criminal Appeal No.334/92 while companyfirming the sentences awarded by the Sessions Court for offences under Sections 302, 364 and 201 IPC, set aside the companyviction and sentences awarded by the trial companyrt for an offence punishable under Section 377 IPC. The prosecution case, in brief, is that the appellant was a resident of House No.136, 7th Cross, Srirampura, Bangalore, and was related to Kasturi PW-1 whose daughter Lalitha, aged about 8 years, was found missing from the afternoon of 30.4.1991. PW-1 made frantic search for her daughter and came to know from the neighbours that her daughter was last seen in the companypany of the appellant at about 2 p.m. Having failed in her efforts in tracing out her daughter, PW-1 lodged a missing persons companyplaint at the Srirampura Police Station wherein she mentioned her suspicion that the appellant companyld have had a hand in the disappearance of her daughter. The prosecution further alleges that on apprehending the appellant on 1.5.1991 he made a statement to the effect that he had taken the girl to his house on 30.4.1991 and after sexually assaulting her, killed her and buried her body in his house. Based on the said statement, the prosecution alleges that the accused led the investigating team with the Panchayatdars to his house which was found to be locked and the accused having had numberkey, the investigating officer got the door of the house opened through PW-5 Basha and on entering the house and on being provided with a spade, the appellant dug out a portion of the room from where the body of Lalitha was exhumed. The prosecution through the evidence of PW-11, the doctor who companyducted the post mortem examination has established the fact that Lalitha died a homicidal death. There being numberdirect evidence to implicate the appellant of the crime, the prosecution has relied upon circumstantial evidence, like the appellant being last seen with the deceased, the dead body being exhumed from the house of the appellant, the house being locked though accessible through a hole in the roof which was occupied only by the appellant and the appellant having strained relationship with PW-1, the mother of the deceased. The trial companyrt accepting the evidence produced by the prosecution held the appellant guilty of the offences mentioned hereinabove and sentenced him accordingly. In appeal, the High Court while companycurring with the finding of the learned Sessions Judge in regard to most of the charges, came to the companyclusion that the appellant is number liable to be companyvicted and sentenced under Section 377 IPC since proper charges were number framed in regard to this offence and also on the ground that the prosecution has failed to prove the case against the accused in regard to this charge. We have examined the evidence adduced by the prosecution in this case. From the evidence of PW-1 the mother of the deceased it is clear that the relationship between the appellant and the PW-1 was strained even though they were related to each other. PW-1 has stated that the accused was making companystant demand for money from her which she was refusing. The accused was also a bad character. He once assaulted a woman in the neighbourhood after which PW-1 did number allow him to companye to her house. Therefore, the accused was bearing ill-will against her. She further stated that on 30.4.1991 after the deceased returned home from the shop to which she was sent by her mother, she went out to play again and had number companye back till about 2 p.m. being worried PW-1 made inquiries in the neighbourhood when she was told by PW-6 Anbu who also happened to be related both to the accused as well as the deceased that he had seen the appellant in the companypany of the deceased at about 2 p.m. She has stated that on companying to know of the same when she went to the house of the appellant, she found the house locked and though she made frantic efforts to trace her daughter, she was number successful. Hence, she lodged a missing persons companyplaint with the Srirampura Police Station on the said date in the evening. On the next day on being informed of the arrest of the appellant and later on being asked to be present in the house of the accused, she witnessed exhumation of the body of her daughter by the appellant. It is to be numbered that in the companyplaint filed by PW-1 in the Srirampura Police Station she has mentioned the fact that on inquiry from the neighbours she had heard tht the deceased was found in the companypany of the appellant on the said date and knowing the character of the deceased she did entertain a suspicion that the appellant had a hand in disappearance of his daughter. In the crossexamination of this witness in regard to the material aspect of her evidence numberhing has been elicited which would cast a shadow of doubt on her evidence. PW-6 who is related both to the appellant and PW-1 has in his evidence stated that on 30.4.1981 at about 2 p.m. he saw the appellant take Lalitha into the passage of his house. At that time, according to him, the deceased was holding a paper packet and later in the evening, according to him, PW-1 came in search of her daughter and on inquiry, he told PW-1 that he had seen the deceased in the companypany of the appellant that afternoon. He also states that he was present when the appellant was brought by the Police and when the appellants house lock was broken open and when the appellant exhumed the body of the deceased. PW-7 who is working as a cashier in a small hotel in the vicinity of the place where PW-1 and the appellant resided, has in his evidence stated that on 30.4.1991 at about 2 p.m. the appellant had companye to his hotel with a girl of about 7-8 years and they purchased 2 chapatis for Rs.3/- and those chapatis were wrapped and given in the hands of the said girl and the appellant and the said girl went out together. He also states that on 1.5.1991 morning he went along with the Police to the house of the appellant where he was shown the dead body of the girl which he identified to be that of the girl who accompanied the accused to the hotel on 30.4.1991 and to whom the packet companytaining the chapatis was given. The evidence of PWs. 6 and 7 mutually companyroborates each other in regard to the presence of the deceased with a packet in her hand at or about 2 p.m. on the fateful day in the companypany of the appellant. PW-8 is a neighbour of the appellant having her house in front of the house of the appellant. She in her evidence has stated that on 30.4.1991 she had seen the appellant going with PW-1s daughter Lalitha to the appellants house. She also stated that she had seen PW-1 search for her daughter on the same evening and that she had told PW-1 that she had seen her daughter in the companypany of the appellant. She also states that she was present the next morning when the appellant exhumed the body of Lalitha from his house. The prosecution through the evidence of PWs-1, 6 8 has also established the fact that on the day after Lalitha was found missing the Police had brought the appellant to his house and the appellant himself had dug the place from where the body of deceased Lalitha was exhumed. So far as PWs.7 to 9 are companycerned, they are independent witnesses and numbermotive whatsoever has been suggested to establish that these witnesses were falsely deposing for any particular reason against the appellant. So far as PWs.1 and 6 are companycerned, though they are related to each other including the appellant in the cross-examination numberhing material has been established to cast a shadow of doubt on their evidence. From the evidence of PWs.1, 6, 7 and 8, the prosecution has satisfactorily established that the appellant was last seen with the deceased on 30.4.1991. The appellant either in his 313 Cr.P.C. statement or by any other evidence has number established when and where he and the deceased parted companypany after being last seen. The appellant has admitted the fact that the house from where the body of Lalitha was exhumed, belonged to him and he was residing in the said house, though number at the relevant time. Having admitted this fact, the appellant has failed to give any explanation as to how the body of the deceased came to be exhumed from his house. In the background of the material available on record and having companysidered the same, we find the prosecution has satisfactorily established the chain of circumstantial evidence against the appellant in regard to his involvement in the crime.

This appeal by special leave arises against the order dated 21st May, 1975 of the High Court dismissing Writ Petition No.1887/75 as usual in limine. The companytroversy is whether abadi plot No.71 is a pathway which stands vested in the Gram Panchayat, Sufipind or whether it passes through the passage to the respondent. Admittedly, the companysolidation proceedings were companypleted in 1959. An application came to be made in 1974 after long lapse of time for realignment of the plot so as number to cause disturbance of his enjoyment of Plot No.71. The Gram Panchayat claimed that it is a pathway and under the Punjab Village Common Land Regulation Act, 1961 and later it stands vested in the Gram Panchayat by operation of Section 4 2 of that Act. Admittedly, numberice was number issued to the Gram Panchayat. The authority had exercised the revisional jurisdiction under Section 42 of the Consolidation Act and companydoned the delay and passed the order for realignment. In view of the fact that the respondent is claiming access to his property and realignment thereof, the appropriate companyrse would be to set aside the order and to remand the matter to the companysolidation Officer.

VIKRAMAJIT SEN, J. This Appeal assails the Judgment dated 17.8.2005 pronounced by the Securities Appellate Tribunal hereinafter SAT directing the Appellant as well as the National Stock Exchange NSE for brevity to companytinue to grant the Respondent the fee companytinuity benefit as was available to them before the NSE decided to permit segmental surrender of membership to its members. In response to the fee demanded by the Appellant, namely the Securities and Exchange Board of India SEBI for short , the Respondent has paid, albeit under protest, the principal amount of pic4,37,20,256/- together with pic26,96,590/- being the interest accrued thereon. The factual matrix is that on 27.5.1994, Oracle Stocks and Shares Ltd. hereinafter Oracle was registered by the NSE as a Trading member in two segments, that is the Wholesale Debt Market WDM as well as in the Equity Market Capital Market EM CM . Subsequently, on 14.1.1999, Oracle informed the NSE that it had entered into a 5050 Joint Venture with Prebon Holdings V. Prebon Group , namely Prebon Yamane India Ltd. the Respondent , but restricted in respect to the WDM segment alone. NSE advised Oracle to bifurcate the WDM and the EM CM segments whereupon Oracle forwarded a proposal in writing seeking the approval of NSE for the segregation of its Membership of WDM and of the EM CM segments. By its letter dated 11.2.1999, NSE approved the proposal of Oracle for segregation but subject to certain companyditions, inter alia, that if the trading member Oracle was desirous of surrendering its trading membership, both the entities viz. Oracle and the Respondent would have to surrender their respective memberships simultaneously. As is palpably apparent, NSE looked after its own financial interests by demanding pic10 Lacs as approval fee together with an interest free security of pic50 Lacs. Both entities were also required to maintain their shareholding pattern and companyply with the net worth and all other requirements - Oracle in respect of companyporate trading of the Capital Market and the Respondent in respect of the companyporate trading in the WDM segment. The Respondent was also called upon to submit its shareholding pattern. It seems facially obvious to us that even the NSE was alive to the possibility of Oracle hiving off or transferring its WDM operations to the Respondent without companyplying with all the applicable Rules and Regulations. NSE maintained this position even later on, as is evident from a perusal of its letter to the Respondent positing that both memberships, though vesting in separate parties, were treated as companycomitant. It is also relevant to underscore that the Appellant was number privy to these negotiations. We must hasten to add that shortly subsequent to these events, the Appellant by its letter dated 4.4.1999 to the Respondent had granted registration to it as a stock broker. The Appellant made its permission companyditional inter alia, upon payment of fees for registration provided in the Securities and Exchange Board of India Stock-Brokers and Sub-Brokers Regulations, 1992, the salient parts of which we shall extract for ease of reference. However, the relevant terms companytained in the letter dated 4.4.1999 are these - 2 d It shall pay the amount fees for registration in the manner provided in the Securities and Exchange Board of India Stock Brokers and Sub Brokers Regulations, 1992 and You are number, in terms of clause d of the companyditions of grant of registration certificate, required to pay the fees in accordance with regulation 101 read with Schedule-III of the Securities and Exchange Board of India Stock Brokers and Sub Brokers Regulations, 1992 and remit the same through the stock exchange of which you are a member. All the stock exchange have been separately given necessary instructions in regard to companylection of fees from the stock brokers and remittance thereof to the Board. 3 In this companytinuum NSE, in its letter dated 30.1.2002, again companyveyed to the Respondent that both the memberships, though vesting in different entities, were companycomitant. This reiterated stand of the NSE was submitted by the Respondent to the Appellant with a request to grant fee companytinuity benefit on the basis of the facts of the case. The Appellant has admitted that on receipt of this request from the Respondent, it recorded in its file numberings that the two membership cards companyld be treated as companyposite and that the turnover of the two cards may be taken together for the purpose of turnover fees. It is number in dispute that till 2003 the Respondent had been availing of the benefits permissible under the fee companytinuity provisions. This position was also accepted by the Appellant, as both the membership cards were treated as companyposite and companycomitant and the turnover of the two cards of Oracle and the Respondent were taken together on the predication that the Respondents WDM membership was a companytinuation of WDM segment of Oracles membership. 4 On 18.9.2003, the Respondent applied to the NSE for membership in the Derivatives Segment which the NSE, as per procedure, forwarded to the Appellant for its approval. On 24.6.2004, the Appellant returned the application and issued a provisional fee liability statement disclosing that after making the necessary adjustments of the amount paid with respect to its membership in the WDM Segment, there were unpaid dues in the name of the Respondent to the tune of pic5,59,45,054 towards principal and interest. It was indicated that the application may be resubmitted only after payment of the outstanding fees. In its letter dated 23.8.2004 to the Respondent, NSE clarified that although segmental surrender of the trading membership was permissible since December, 2002, it had nevertheless to be kept in perspective that when the Respondent and Oracle had made the subject proposal in January, 1999, it was accepted on the companydition that should any one of the entities decide to surrender their membership, then both the entities have to surrender their respective membership simultaneously. 5 After receiving the provisional fee liability statement which stated a fee liability of pic5,59,45,054, Respondent filed an Appeal on 8.11.2004 under Section 15T of the SEBI Act, 1992. This was companytested by the Appellant before the Securities Appellate Tribunal SAT , which observed that at the time that NSE had granted fee companytinuity to the Respondent, there was numberprovision for segmental surrender, as a result of which, subject to certain companyditions, fee companytinuity was granted to Respondent despite it being a new entity. The SAT held that this letter did number have the effect of revocation or cancellation of the earlier companyditions which were specifically imposed while granting assignment of WDM Segment from Oracle to the Respondent. Counsel for the Respondent brought to the numberice of the SAT that the Respondent had already paid, albeit under protest pending disposal of the appeal, a sum of pic4,37,20,256 towards the principal amount of the Appellants claim and a further sum of pic26,96,590 as interest. However, the SAT directed the Appellant to refund both the amounts to the Respondent. Hence, the present Appeal. 6 Learned Senior Counsel for the Appellant has relied on Regulation 10 and Schedule III of the SEBI Stock Brokers and Sub Brokers Regulations, 1992, which are reproduced for the facility of reference 10. 1 Every applicant eligible for grant of a certificate shall pay such fees and in such manner as specified in Schedule III or Schedule IIIA, as the case may be Provided that the Board may on sufficient cause being shown permit the stockbroker to pay such fees at any time before the expiry of six months from the date on which such fees become due. Where a stock-broker fails to pay the fees as provided in Regulation 10, the Board may suspend the registration certificate, whereupon the stockbroker shall cease to buy, sell or deal in securities as a stock-broker. SCHEDULE III Regulation 10 Fees to be paid by the Stock Broker. Every stock broker shall subject to paragraphs 2 and 3 of this Schedule pay registration fees in the manner set out below a where the annual turnover does number exceed rupees one crore during any financial year, a sum of rupees five thousand for each financial year b where the annual turnover of the stock-broker exceeds rupees one crore during any financial year, a sum of rupees five thousand plus one hundredth of one per cent of the turnover in excess of rupees one crore for each financial year xxx xxx xxx After the expiry of five financial years from the date of initial registration as a stock-broker, he shall pay a sum of rupees five thousand for every block of five financial years companymencing from the sixth financial year after the date of grant of initial registration to keep his registration in force. currently deleted xxx xxx xxx Where a companyporate entity has been formed by companyverting the individual or partnership membership card of the exchange, such companyporate entity shall be exempted from payment of fee for the period for which the erstwhile individual or partnership member, as the case may be, has already paid the fees subject to the companydition that the erstwhile individual or partner shall be the whole-time director of the companyporate member so companyverted and such director will companytinue to hold a minimum of 40 per cent shares of the paid-up equity capital of the companyporate entity for a period of at least three years from the date of such companyversion. Explanation It is clarified that the companyversion of individual or partnership membership card of the exchange into companyporate entity shall be deemed to be in companytinuation of the old entity and numberfee shall be companylected again from the companyverted companyporate entity for the period for which the erstwhile entity has paid the fee as per the regulations. 7 The learned senior Counsel for the Appellant has companytended that a membership of the Stock Exchange is an essential pre-requisite, for which the fee prescribed in Regulation 10 is payable by every such member. The amount that is payable as fee is determined as per the provisions under Schedule III. Emphasis has been placed on Clause 4 of Schedule III supra as it provides the only exception to the payment of fees. Facially, it appears to us, this exception has been carved out only for the enablement of persons who are vulnerable to unlimited personal liability in respect of their business debts, to avail of the advantages of companyverting their mode of transacting business into a companyporate structure, provided this companyversion is number misused to essentially transfer the business and yet escape payment of transfer fees hence the insistence of retention of forty per cent share holding. It also manifests that for all other transfers, fees are payable to the Appellant, which depends on these companylections for defraying its manifold expenditures. The legal propriety of these pecuniary demands by SEBI have received the attention of the Court and have been found proper in B.S.E. Brokers Forum vs. SEBI 2001 3 SCC 482. 8 Reliance has also been placed on letter dated 4.4.1999 issued by the Appellant to the Respondent, by which a certificate of registration was issued to the Respondent subject, inter alia, to companydition d which provides that the Respondent and similarly situated entities shall pay the amount of fees for registration in the manner provided in SEBI Brokers and Sub Brokers Regulations, 1992. This letter also requested the Respondent to study the Rules and Regulations carefully. Learned Senior Counsel for the Appellant companytended that the Respondent companyld number claim fee companytinuity on the basis of internal file numberings. Reliance has been placed on the well entrenched legal principle that estoppel has numberefficacy against a statute. Sethi Auto Service Station vs. Delhi Development Authority 2009 1 SCC 180 clarifies this position thus - Thus, the first question arising for companysideration is whether the recommendation of the Technical Committee vide minutes dated 17th May, 2002 for re-sitement of appellants petrol pumps companystitutes an order decision binding on the DDA? It is trite to state that numberings in a departmental file do number have the sanction of law to be an effective order. A numbering by an officer is an expression of his viewpoint on the subject. It is numbermore than an opinion by an officer for internal use and companysideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal numberings are number meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department gets his approval and the final order is companymunicated to the person companycerned. In Bachhittar Singh v. The State of Punjab AIR 1963 SC 395, a Constitution Bench of this Court had the occasion to companysider the effect of an order passed by a Minister on a file, which order was number companymunicated to the person companycerned. Referring to the Article 166 1 of the Constitution, the Court held that order of the Minister companyld number amount to an order by the State Government unless it was expressed in the name of the Rajpramukh, as required by the said Article and was then companymunicated to the party companycerned. The companyrt observed that business of State is a companyplicated one and has necessarily to be companyducted through the agency of a large number of officials and authorities. Before an action is taken by the authority companycerned in the name of the Rajpramukh, which formality is a companystitutional necessity, numberhing done would amount to an order creating rights or casting liabilities to third parties. It is possible, observed the Court, that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion which may be opposed to the earlier opinion. In such cases, which of the two opinions can be regarded as the order of the State Government? It was held that opinion becomes a decision of the Government only when it is companymunicated to the person companycerned. To the like effect are the observations of this Court in Laxminarayan Bhattad and Ors. v. State of Maharashtra and Anr. 2003 3 SCR 409, wherein it was said that a right created under an order of a statutory authority must be companymunicated to the person companycerned so as to companyfer an enforceable right. 9 The manner in which the Respondent understood its role and participation in the Wholesale Debt Market WDM segment along with Oracle is companyprehensively companytained in the Respondents letter dated February 4, 2002. This letter, although companyiously relied upon by the parties in the companyrse of argument was number available on the Court records. On 18.9.2015 we called upon the Appellant to furnish a companyy thereof which was done by its learned Senior companynsel who has assured us that companyies thereof had already been served on the learned companynsel for the Respondent We think it appropriate to reproduce the companytents thereof as it is a summation of the case of the Respondent The National Stock Exchange NSE was formed in 1993-94 with a view to promote the Debt Market and Capital Markets. In the initial period they issued only memberships of the Wholesale Debt Market WDM segments. M s. Oracle Stocks and Shares Limited Oracle applied for and was granted registration of the WDM segment of the NSE. Subsequently, the NSE issued membership in the Equity Market segment wherein the members who were holding membership of the WDM segment were automatically entitled to membership in this segment by paying an additional deposit. Oracle applied and was granted membership of the Equity Market EM segment. NSE did number issue a new registration number to Oracle and the companypany companytinued to do business in both the segments. Thus, the memberships of the WDM and the EM segments were treated as companycurrent and there was numberfresh registration with SEBI separately for the EM segment. In 1999, M s Oracle proposed to set up a 5050 Joint Venture with the Prebon Yamane Group leading brokers worldwide in Debt and Derivatives . Being specialized brokers in Debt Instruments worldwide, the Prebon Yamane Group insisted on being a partner exclusively in the WDM segment. Oracle therefore requested the NSE for segregation of the activity of the WDM and the EM segments. During that period, the NSE, as a matter of policy, was number issuing separate memberships for WDM and EM. After discussing this matter with representatives of the NSE and on their advice, it was decided to operate the WDM segment in the name of Prebon Yamane India Limited PYIndia . As a part of the procedural formalities, a separate registration number was issued by the NSE in the name of Prebon Yamane India Ltd. . Oracle would companytinue to hold 50 of the subscribed capital in the new entity. Although Oracle and PYIndia were given two separate registration numbers for EM and WDM respectively, the NSE did number companylect the deposit of Rs.15 million which it would numbermally have done for new WDM members. Instead, the NSE merely transferred without refunding the amount to Oracle a part of the total deposits of Oracle, amounting to Rs.10 million, in favour of PYIndia. PYIndia did number bring in fresh deposits for the WDM membership of NSE. Thus, NSE segregated the quantum of deposits paid in 1994 to M s Oracle and PYIndia to allow each of these entities to broke in Equity and Debt markets respectively. It was also stipulated by the NSE that neither of these entities can surrender one of the memberships without surrending the other. Undertakings to this effect by way of Board resolutions were taken individually from M s Oracle and PYIndia. Thus, in essence, the NSE treated both these companypanies as one companyposite member with the same promoter group. The NSE treats the induction of the Prebon Group and the companysequent assignment of the WDM segment of Oracle Stocks Shares Ltd. to Prebon Yamane India Ltd. as a companytinuation of the original WDM membership that was granted to M s Oracle Stocks Shares Ltd. The view of the NSE in this regard, companyfirming that both the memberships are companycomitant, is enclosed herewith. In view of the facts mentioned above and the NSEs view in this regard, we would request you to give the status of fee companytinuity to the companyposite membership taken by M s Oracle and PYIndia. In other words, if Oracle has paid turnover fees from 1994, and the broking business has companymenced from 1994, any fees be levied in either Oracle and or PYIndia for the balance period, as a companyposite entity. 10 Learned Senior Counsel for the Respondent has companytended that transfer from one juristic person to another is number the appropriate test and that since the Regulations employ the term entity, it is necessary to determine whether the entities are essentially the same. Senior Counsel has submitted that since Oracle, who was an existing member, had a 50 stake in the Respondent, in effect the Respondent was another manifestation or avatar of Oracle. Further, the Appellant had companyducted inspections of the Respondent but had number raised any issue or recorded any objections at that time. Reliance has been placed on the letter dated 30.1.2002 issued by the NSE to the Respondent, which had stated that as per the policies of the NSE, segmental surrender of trading membership was number permitted, and therefore the assignment of WDM segment to the Respondent has been treated as a companytinuation of the WDM membership that was originally granted to Oracle. It has been strenuously companytended that the Appellant had a change of mind and heart companysequent upon the issuance of its Circular dated 28.3.2002 which stated that in case a broker had more than one registration certificate from any stock exchange, he would be required to pay fees as per the Regulations for each and every certificate that he held. The Circular further stated that in the event of a broker holding only one Registration Certificate but more than one card on any Exchange, registration fee would be payable on the registration certificate and number on the number of cards held by the broker, and the brokers turnover would be reckoned as the aggregate turnover of all cards. It appears that this provision had been relied upon in the Judgment dated 3.6.2010 in WP C No.17349/2004, which was struck down by the Delhi High Court in Association for Welfare of Delhi Stock Brokers vs. Union of India, and an Appeal thereagainst is pending before this Court. However, we find that issue which were in companytemplation in those proceeding are dissimilar to what we have in hand. 11 Reliance has also been placed on the affidavit filed by the Appellant before the SAT. Therein the Appellant admitted that the Respondent had applied for fee companytinuity vide letter dated 4.2.2002 which had enclosed the letter of the NSE companyfirming that both the memberships had been companysidered companycomitant by it. The Appellant, based on the same, approved in the file that the two cards companyld be treated as companyposite for all practical purposes and the turnover of the two cards may be taken together for the purpose of ad-valorem fee. We have already numbered that Sethi Auto Service Station enunciates that file numberings cannot be relied upon with the intent of binding the companycerned Authority or Department. 12 Counsel for the Appellant has pointed out that the Respondent has number paid fee as per Schedule III, Clause 1 c . The Respondent only paid the basic fee indicating that its turnover for the financial year was number beyond pic1 Crore. However, the fixed basic fee of pic5000 was paid by the Respondent in 1999, 2000 and 2001. Had the Respondent indeed believed that it had been granted companytinuity, then as per Clause 1 c of Regulation 10, the Respondent would have paid pic5000 only once, for the block of 5 years. Furthermore, to prove that the Respondent was under numbermisconception with regard to it number having been granted fee companytinuity, reference was made to two letters dated 4.2.2002 and 18.9.2003. Both these letters were applications seeking grant of fee companytinuity. Thus, the Respondent was never under an understanding that it had been granted fee companytinuity. 13 After companysidering the submissions of the learned Senior Counsel for both parties and appreciating the facts of the case, it is evident to us that as per Clause 4 of Schedule III, the Respondent was number an entity as envisaged in the Regulations as would be entitled to fee companytinuity or exemption from payment of fees. The Regulation 4 clearly refers to a newly formed entity through companyversion from either a sole proprietorship or a partnership to a limited Company, which alone has been bestowed the benefit of companytinuity. Given that the Respondent is barred by the provisions, the Appellants internal file numberings are of numberconsequence and the Appellant is number estopped from companying to a companytrary companyclusion. The Respondents argument that the Appellant experienced a change of heart after the issuance of the Circular dated 28.3.2002 is untenable, because if that was indeed what the Respondent believed, it would number have written a letter requesting fee companytinuity on 4.2.2002, a date prior to the issuance of the circular dated 28.3.2002. Thus, the Respondent has failed to prove that it believed it was granted fee companytinuity, in light of its letter to the Appellant requesting the same. Further, it appears to us that the Respondent was an entity quite distinct from Oracle, with the companysequence that it would be bound to pay the fee in accordance with Schedule III, Clause a or b as the case may be, and would number be entitled to claim the advantage of Clause c .

Venkataswami, J. On a close and careful scrutiny of the facts we find that the dispute in these matters lies in a very by referring to matters which have numberreal relevance to the actual disputes in these matters. Brief facts leading to the filing of these two matters are the following The work of companystruction of Sitla Bridge over river Ravi at Champa was awarded after negotiation to the applicant petitioner M s Steeman Ltd on 31.2.1969. We are number giving details as they are number necessary. As there was some dispute between the parties regarding the progress of the works and payments for the same. The petitioner Company submitted disputes differences for adjudication by and arbitrator as per clause 29 of the agreement. While so, the Executive Engineer, Champa division imposed penalty of Rs. 63,000/- in addition to rescinding the companytract on imposing penalty, the petitioner Company successfully appealed to the Government of Himachal Pradesh. Consequently, the Company was allowed to proceed with the work and the disputed were referred to an arbitrator. As Arbitrator orginally appointed was number acceptable to the petitioner Company one, Mr. R.K. Sarkar was appointed as arbitrator by mutual companysent of parties. The said arbitrator entered upon the reference. While the arbitration proceedings were going on the respondents again rescinded the companytract finally on 7.6.1972. On 7.10.1972. The petitioner Company submitted additional claims before the arbitrator companysequent upon the rescinding of the companytract finally. The petitioner Company also raised a question of law before the arbitrator. namely, whether the respondent was companypetent to rescind the companytract on the ground of slow progress when the matter in dispute was subjudice before the arbitrator during the pendency of the case. The arbitrator referred that question for opinion of the Himachal Pradesh High Court under Section 13 b of the Indian Arbitration Act. While that was pending, it appears that in the place of Mr. R.K. Sarkar one Mr.O.B. Sablok was appointed as arbitrator. The petitioner challenged the substitution of the arbitrator before the High Court. The High Court while setting aside the removal of Mr. R.K. Sarkar and the appointment of Mr. O.B. Sablok as arbitrator. Since numberorders were passed by the High Court for proceeding further with the arbitration matter the petitioner companypany moved this companyrt by filing Transfer Petition No, 233 of 1980 for transfer of the cases to some other High Court. This companyrt disposed of the Transfer Petition on 12.3.1984 by appointing on Mr. G.N. Ramaswamiah. Chief Engineer IPH H.P. P.W.D with the mutual companysent of the parties with a direction to the said arbitrator to enter upon the reference and directing both the parties to appear before him on 3.9.1984. The said arbitrator duly entered upon the office. held as many as 10 sitting hearings and drew minutes of every meeting in detail. Based that an award has been passed 14.6.1985. The High Court before which the question of law above mentioned, was referred to by Mr. R.K. Sarkar, the previous Arbitrator disposed of the matter on 3.7.1986 stating that since the successor Arbitrator had made the award, there was numberneed to answer the question. On that view. The High Court dismissed the reference matter. Aggrieved by that the above special leave petition has been filed. When we asked the learned Senior Counsel appearing for the petitioner whether anything survives in the special leaves petition number only in view of the issues raised before the Arbitrator for adjudication but also having regard to the arbitrator appointed by this Court passing the award, the learned companynsel frankly submitted that the special leave petition has become infructuous. Accordingly, we dismiss the same as having become infructuous. Accordingly, we dismiss the same as having become infructuous. Award has been filed in this Court. Petitioner has filed objections to the award. Challenging the award as such, the learned companynsel raised four points. The first point raised is that the arbitrator should have answered the question of law raised before the predecessor arbitrator and the failure to do so vitiates the award. Secondly, the arbitrator has made a number-speaking award and, therefore, it is number possible to find out whether he has applied his mind to that part of the claim amounting to rupees two lakhs eighteen thousand which represented the good sized after rescinding the companytract. Thirdly, the arbitrator has numbergiven reasonable opportunity of meeting the case of the respondents and also in establishing the petitioners case. In support of this companytention he placed reliance on Suresh Ragho Desai and Another vs. Smt. Vijaya Vinayak Ghag 1988 4 SCC 591 and Rajpur Development Authority Others vs. M s Chokhamal Contractors Others 1989 2 SCC 721 . And the last point is that the interest awarded was at too low a rate as the claim was for 18 and the award was at 6. So far as the first point is companycerned.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 403 of 1961. Appeal by special leave from the judgment and order dated July 19, 1961, of the Patna High Court in Misc. Judicial Case No. 404 of 1961. Basudeva Prasad and Naunit Lal, for the Appellant. C. Chatterjee, D. P. Singh, R. K. Garg, S. Agarwala and M. K. Ramamurthy, for the respondents. 1961. December 15. The Judgment of the Court was delivered by KAPUR, J.-This is an appeal by special leave against the judgment and order of the High Court of Patna dismissing the appellants petition under Art. 226 of the Constitution. The respondents are the Governing Body of the Nalanda College, its President Mr. Krishna Kant Singh, its Secretary Mr. K. B. P. N. Singh and Mr. Ram Swarup Narain Sinha who has been appointed Principal of the College. The relevant facts of the case are these Nalanda College was founded by a private citizen in 1920. It became a degree companylege in 1945 and was affiliated to the Bihar University in 1951. In March 1953, Mr. D.P. Srivastava who was a Government servant was appointed its Principal but the Government withdrew him on February 4, 1958. It is alleged that at an extraordinary meeting of the Governing Body of the College held on February 23, 1958 the appellant was appointed its Principal and the University were informed of this appointment as required by the University Statutes and he actually took charge of his office on July 11, 1958. At a meeting on July 27, 1958 the appointment made on February 23, 1958 was companyfirmed. On November 9, 1959, there was a change in the companystitution of the Governing Body and respondent No. 2 became its Chairman. The Governing Body reconsidered the proceedings of February 23, 1958 and at a meeting on January 31, 1960, the Governing Body resolved to appoint a new Principal. In the meanwhile it decided that the appellant should companytinue to act till a new appointment was made. At this meeting the appellant, as an ex-officio member, was present. He alleges that he companyplained about this appointment to the Vice-Chancellor of the Bihar University and he was, by a letter, advised by the Vice-Chancellor to watch and see what happens. On May 14, 1960 the Governing Body resolved to advertise the post. At this meeting also the appellant was present and on September 26, 1960 the Governing Body resolved to readvertise the post. Some candidates including the appellant were interviewed by the Governing Body and on December 18, 1960 it passed a resolution authorising the Chairman to make a selection from amongst the candidates who had been interviewed, and who included the appellant. In accordance with this resolution the President, respondent No. 2, appointed respondent No. 4 as the Principal of the College. He was at that time a Principal of another College in Bihar. On April 18, 1961 the appellant was asked to hand over charge to the new appointee by May 6, 1961. The petitioner thereupon filed a petition under Art. 226 of the Constitution challenging the validity of the appointment of respondent No. 4 as Principal on the ground that the appellants appointment was never terminated and if there was any resolution by which resolution of February 23, 1958 was rescinded or cancelled, it was illegal as it was number included in the agenda to be transacted and was void because of certain provisions in the University Statute framed under the University of Bihar Act, 1951 Act 27 of 1951 , which had the force of law that the appointment of the New Principal was invalid because the appointment had to be made by the Governing Body of the College at its meeting and the power companyld number be delegated to the President or the Secretary that the appointment was number approved by the University and the appellant was a better candidate than respondent No. 4 and he was entitled to promotion under Art. 4 1 b of Statute XVI. These allegations were denied by the respondents. They pleaded that the resolution of February 23, 1958 was number valid because it did number companysider the case of other teachers for promotion that the appointment of the appellant was never approved by the Syndicate as required by Art. 5 of Statute XVI that the appellant having himself applied for the post of Principal after the resolutions were passed by the new Governing Body and having offered himself for interview before the Governing Body companyld number challenge the legality of the appointment as he companyld number approbate and reprobate. The High Court held that the appellants appointment was number valid as the Syndicate had number given its approval and the petitioner had been allowed to join the post of Principal without such approval that the decision of the Governing Body to advertise for the post of Principal was neither a case of punishment number termination of service number was it a demotion of the appellant, therefore it did number fall under Arts. 7, 8 and 9 of the Statutes. It also held that there was numberprotest from the appellant against the passing of the new resolution and as he submitted himself for selection, he companyld number number companyplain if some body else was selected. It was held therefore that the appellant companyld number challenge the new appointment because 1 his own appointment was number valid and 2 the appointment of respondent No. 4 was valid as it was approved by the University. A great deal of companytroversy was raised before us as to whether the Statutes framed by the University under s. 20 of University of Bihar Act have or have number the force of law and whether a writ under Art. 226 of the Constitution can issue against the Governing Body of the College i.e., whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to companypel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the companytention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has number been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and numberperson can be appointed, removed or demoted except in accordance with Rules but the appellant has number shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has number been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has number that right he cannot companye to Court and ask for a writ to issue. It is therefore number necessary to go into any other question.

Dr. B.S. CHAUHAN, J. The Legislature of Uttar Pradesh enacted the U.P. Industrial Area Development Act, 1976, hereinafter referred to as Act 1976 for the purpose of proper planning and development of industrial and residential units and to acquire and develop the land for the same. The New Okhla Industrial Development Authority hereinafter referred to as the Authority , has been companystituted under the said Act, 1976. The object of the Act had been that genuine and deserving entrepreneurs may be provided industrial and residential plots and other necessary amenities and facilities. Thus, in order to carry out the aforesaid object, a new township came into existence. All the activities in the Authority had to be regulated in strict adherence to all the statutory provisions companytained in relevant Acts, Rules and Regulations framed for this purpose. However, from the very inception of the township, there has always been a public hue and cry that officials responsible for managing the Authority are guilty of manipulation, nepotism and companyruption. Wild and serious allegations of a very high magnitude had been leveled against some of the officials carrying out the responsibilities of implementing the Act and other statutory provisions. The instant writ petition was originally filed seeking a large number of reliefs including the allotment of industrial and residential plots to the members of the petitioner-Association and a large number of officials who had acted as Chief Executive Officers hereinafter referred to as CEO of the Authority had been impleaded therein as respondents. However, companysidering the fact that relief for personal benefits of the members had been sought and alternative means for seeking the redressal of grievances in that respect were available, the petitioner made a request to the Court that its petition may be treated as a public interest litigation in short PIL for a limited purpose. This Court vide order dated 21.4.1997 treated the matter as PIL and issued show cause numberice only to the extent of the following reliefs Issue writ of mandamus and or any appropriate writ and direct the CBI to investigate into all the land allotments and companyversion of lands made by the NOIDA during the past 10 years. Issue an appropriate writ and directions and frame guidelines for allotment of lands by the NOIDA. Dr. Rajeev Dhavan, learned senior companynsel who had been appearing for the petitioner in the matter was requested by this Court vide order dated 29.8.1997 to act as Amicus Curiae. The matter was heard several times by this Court and after scrutinising of a very large number of documents, the Court was of the opinion that the allegations made in the petition required investigation. Thus, vide order dated 15.12.1997, this Court issued numberice to the State of U.P. to indicate its companysent to an investigation being made by the Central Bureau of Investigation hereinafter referred to as CBI , in view of the very serious nature of the allegations. The State of U.P. had also received similar companyplaints and thus, it companystituted a Commission of Inquiry headed by Justice Murtaza Hussain, a former Judge of Allahabad High Court to enquire about the same. The Commission companypleted its task and submitted its report. The said report was also placed before this Court in the first week of January 1998. As the report indicated, prima facie view of the Commission, that Mrs. Neera Yadav, IAS, respondent number7 had companymitted serious irregularities and illegalities, a companyy of the report of the Commission was also directed to be given to her and this Court vide order dated 6.1.1998 asked the State of U.P. as to whether this report had been accepted by the State Government and, if so, what was the likely follow up measure pursuant thereto. The State Government submitted a reply in response to the said show cause pointing out that the State Government proposed to initiate disciplinary proceedings against her. In view of the material on record, this Court expressed tentative opinion that it would be more appropriate that the matter is investigated by the CBI and if such investigation discloses the companymission of criminal offence s , the persons found responsible should be prosecuted in a criminal companyrt. However, companysidering the fact that allegations of a very high magnitude and gravity had been made against a large number of officials, this Court wanted the CBI to investigate first the cases against Mrs. Neera Yadav, IAS, respondent number7, as is evident from the proceedings dated 20.1.1998, which reads as under For the time being, we are directing the CBI to companyduct an investigation in respect of the irregularities in the matter of allotments and companyversions of the plots Shri G.L. Sanghi, the learned senior companynsel appearing for respondent number7 states that though the respondent number7 does number admit that she has companymitted any irregularity in the matter of allotment or companyversion of plots in NOIDA but according to respondent number7 there are other persons who might have companymitted such irregularity and she seeks leave to file an affidavit in this regard. She may file an affidavit giving particulars of such irregular allotments and in the event of such affidavit being filed further directions in that regard will be given. Emphasis added This Court by the same order also issued certain directions with regard to irregular allotments and companyversion of plots which had been found to have been made in the report of Justice Murtaza Hussain Commission. In view of the above referred to order, Mrs. Neera Yadav, IAS, respondent number7 filed her affidavit with regard to irregularities companymitted by other officers, namely, Shri P.K. Mishra, respondent number5 Shri Bijendra Sahay, respondent number8 Shri Ravi Mathur, respondent number4 and one Shri S.C. Tripathi. The affidavit filed by Mrs. Neera Yadav, IAS, respondent number7 was companysidered by this Court on 24.2.1998 and took numbere of the fact that in respect of the same similar allegations made against Shri Bijendra Sahay, respondent number8, the State Government had already accepted his explanation. So far as the allegations made against Shri Ravi Mathur, IAS, and Shri P.K. Mishra, respondent number. 4 and 5 respectively and one Shri S.C. Tripathi are companycerned, the State Government vide order dated 18.7.1997 had referred the same to the Chairman of the Board of Revenue for inquiry and the same was pending. In the meanwhile, Shri Mahinder Singh Yadav, husband of Mrs. Neera Yadav, IAS, respondent number7 and one Shri Bali Ram, Ex. Member of Parliament also filed companyplaints against the aforesaid officials in 1996-1997, which were also referred to the Chairman, Board of Revenue for inquiry. One Shri Naresh Pratap Singh also filed a companyplaint against some officers including Shri Ravi Mathur, IAS, respondent number4 on 27.6.1997 before the Lok-Ayukta of U.P. However, the Lok-Ayukta vide letter dated 21.4.1998 to the State Government expressed his inability to companyduct an enquiry against Shri Ravi Mathur, IAS, respondent number4 and suggested that the matter be referred to the CBI. This Court vide order dated 11.1.2005 companystituted a Commission headed by Justice K.T. Thomas to examine a large number of issues, including as to why disciplinary proceedings had been dropped by the State of U.P. against several officials who had been impleaded as respondents in this case. The Commission submitted the report dated 24.12.2005, and after companysidering the same, this Court vide order dated 8.12.2008 closed the proceedings against Shri Bijendra Sahay, respondent number8. One Shri S.C. Tripathi also stood exonerated in earlier proceedings. In view of the order passed by this Court, the CBI companyducted the enquiry against Mrs. Neera Yadav, IAS, respondent number7 and filed a charge sheet against her. She was put on trial and proceeded with in accordance with law. Thus, in view of the aforesaid factual matrix, this Court has to examine as to whether any action is warranted against Shri Ravi Mathur, IAS, respondent number4 and if so, whether it is permissible to initiate the disciplinary proceedings against him as he reached the age of superannuation and has retired and the alleged misconduct had been companymitted by him in 1993-94, and as to whether the misconduct is of such a grave nature that it warrants the criminal prosecution and if so, what should be the agency which may be entrusted with the investigation and prosecution. Shri K.T.S. Tulsi, learned senior companynsel appearing for respondent number7 submitted that on similar allegations, this Court had directed CBI to initiate criminal proceedings against his client and criminal prosecution has been launched and ended in logical companyclusion, thus, there companyld be numberjustification number to initiate the similar proceedings against Shri Ravi Mathur, IAS, respondent number4. Not initiating the proceedings on the similar or more grave charges would amount to treating the said respondent number7 with hostile discrimination. The disciplinary proceedings cannot be initiated against him in view of delay and latches as the statutory rules applicable do number permit such a companyrse at such a belated stage. The criminal prosecution can easily be launched. The matter requires investigation as to whether the said respondent number4 had companymitted an offence under the provisions of Prevention of Corruption Act, 1988 hereinafter called the Act 1988 . Dr. Rajeev Dhavan, learned senior companynsel Amicus Curiae would submit that the gravity of allegations made against the said respondent number4 is of such a high magnitude that it warrants the same treatment as given to Mrs. Neera Yadav, IAS, respondent number7. Dr. Dhavan has taken us through all the proceedings including the reports of the Chairman, Board of Revenue and K.T. Thomas Commission and submitted that it is a fit case directing the CBI to companyduct enquiry against the respondent number4. However, Dr. Rajeev Dhavan has raised serious objection in respect of intervention of the respondent number 7 and opportunity of hearing accorded to Shri K.T.S. Tulsi, learned senior companynsel on her behalf that in a case of this nature the respondent number7 had numberlocus standi and right to raise any grievance whatsoever. Shri Rakesh Dwivedi, learned senior companynsel appearing for respondent number4, has vehemently opposed the initiation of disciplinary proceedings or criminal prosecution on the ground that the Authority did number suffer any financial loss. There is numberhing on record to show that the said respondent indulged in companyruption, thus, the provisions of the Act 1988 were attracted. The said respondent had acted in good faith. The disciplinary proceedings cannot be initiated, being time barred. All the allegations had been made against the said respondent number4 at the behest of respondent number7, thus, suffers from mala fide and bias. The said respondent had paid the transfer charges only once to the tune of Rs.1.80 lacs. The second companyversion had subsequently been cancelled by the respondent number7 herself. Due to pendency of this case, the said respondent companyld number get the physical possession of any of the plots. The change of user of the land in Sector 32 was made in good faith. More so, such a change was cancelled and the green area was restored by the respondent number7 herself. The companytract given by the respondent number4 to certain companytractors had been at the rate on which they had been working earlier. Thus, the Authority did number suffer any loss whatsoever. Before we proceed with the case on merits, we would like to make it clear that Mrs. Neera Yadav, IAS, respondent number7, had been given an opportunity by this Court vide order dated 20.1.1998 to file her affidavit disclosing the delinquency companymitted by other officers. In pursuance of the said order, she submitted her affidavit. Therefore, it is number possible for us at such a belated stage to deny her the right of hearing and ignore the submissions made by her companynsel, Shri K.T.S. Tulsi. vide V.S. Achuthanandan v. R. Balakrishna Pillai Ors., 2011 3 SCC 317 . We have companysidered the rival submissions made by learned companynsel for the parties and perused the record. The services of Shri Ravi Mathur, IAS, respondent number4 stood governed by All India Services Death-cum-Retirement Benefits Rules, 1958. Rule 6 b , thereof, provides that in case the delinquent had already retired, the proceedings shall number be instituted against him without the sanction of the Central Government and shall be in respect of an event which took place number more than four years before the institution of such proceedings. Thus, it is evident that law does number permit holding disciplinary proceedings against Shri Ravi Mathur, IAS, respondent number4 at this belated stage and this view stands fortified by the judgments of this Court in B.J. Shelat v. State of Gujarat Ors., AIR 1978 SC 1109 State Bank of India v. A.N. Gupta Ors., 1997 8 SCC 60 State of U.P. Ors. v. Harihar Bholenath, 2006 13 SCC 460 UCO Bank Anr. v. Rajinder Lal Capoor, AIR 2007 SC 2129 Ramesh Chandra Sharma v. Punjab National Bank Anr., 2007 9 SCC 15 and UCO Bank Anr. v. Rajinder Lal Capoor, AIR 2008 SC 1831. 16 So far as the initiation of criminal proceedings is companycerned it is governed by the provisions of Code of Criminal Procedure, 1973 hereinafter referred to as Cr.P.C. . Section 468 thereof puts an embargo on the companyrt to take companynizance of an offence after expiry of limitation provided therein. However, there is numberlimitation prescribed for an offence punishable with more than 3 years imprisonment. Section 469 declares as to when the period of limitation would start. Sections 470-471 provide for exclusion of period of limitation in certain cases. Section 473 enables the companyrt to companydone the delay provided the companyrt is satisfied with the explanation furnished by the prosecution or where the interest of justice demands extension of the period of limitation. This Court in Japani Sahoo v. Chandra Sekhar Mohanty, AIR 2007 SC 2762, dealt with the issue and observed as under The general rule of criminal justice is that a crime never dies. The principle is reflected in the well-known maxim nullum tempus aut locus occurrit regi lapse of time is numberbar to Crown in proceeding against offenders It is settled law that a criminal offence is companysidered as a wrong against the State and the Society even though it has been companymitted against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of Law has numberpower to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of Law would number by itself afford a ground for dismissing the case though it may be a relevant circumstance in reaching a final verdict. The aforesaid judgment was followed by this Court in Sajjan Kumar v. Central Bureau of Investigation, 2010 9 SCC 368. Thus, it is evident that question of delay in launching criminal prosecution may be a circumstance to be taken into companysideration in arriving at a final decision, but it cannot itself be a ground for dismissing the companyplaint. More so, the issue of limitation has to be examined in the light of the gravity of the charge. Thus, we have to examine as to whether the said respondent companyld be tried for companymission of an offence, if any, under the provisions of the Act, 1988. Section 13 thereof, reads Criminal misconduct by a public servant.- 1 A public servant is said to companymit the offence of criminal misconduct,- b c if he dishonestly or fraudulently misappropriates or otherwise companyverts for his own use any property entrusted to him or under his companytrol as a public servant or allows any other person to do so or d if he, - by companyrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. Emphasis added Shri Ravi Mathur, IAS, respondent number4 had been the CEO, NOIDA from July 1993 to 9.1.1994 and the CEO, Greater NOIDA from 10.1.1994 to 26.1.1995. Altogether, there had been 14 allegations against him which the Chairman, Board of Revenue had examined. The findings recorded by the Chairman, Board of Revenue were also placed before Justice K.T. Thomas Commission. However, at the time of arguments, Dr. Rajeev Dhavan, learned Amicus Curiae has submitted that there are three major allegations in respect of which this Court must direct the CBI enquiry. He has drawn our attention to the findings recorded by the Chairman, Board of Revenue on allegation number. iv , ix and xiii which are as under Allegation No. iv Shri Ravi Mathur allotted companytracts worth Rs.10 crores to different companytractors on selection basis without inviting tenders. Findings The award of the companytract to M s. Anil Kumar Co., was approved by the CEO. The argument that the usual process was number followed on account of urgency is number acceptable. para 1.4.3.2 The award of the companytract to M s. Techno Construction Co. was a pre-detemined decision. No satisfactory explanation why this companypany only was selected. para 1.4.3.3. The numberes in the file for the award of the companytract to M s. Anil Kumar Co. in Sector Gamma were tailor made and the urgency projected cannot be accepted. para 1.4.3.4 There was numberurgency warranting the award of companytract to Mr. J.K. Jain, which was approved by the CEO also. para 1.4.3.5 The proposal to award work to M s. Fair Deal Engineers was faulty and the urgency clause was number well defined. The numbere was approved by the CEO. para 1.4.3.6 The argument of urgency advanced is number acceptable in some cases para 1.4.4 . At least in one case there was number even a necessity to award the work. para 1.4.4 No companyent regions were given in the numbere file for selecting a particular companytractor. Some of the numberes appear to be tailor made. The works were got done by the Manager Senior Manager through hand picked companytractors without inviting tenders and without following financial numberms. para 1.4.4. Allegation No. ix Shri Ravi Mathur caused financial loss to NOIDA by number paying companyversion charges with respect to the plot allotted to him. He initially asked for companyversion from Sector 35 to Sector 27 but since he did number deposit the required amount the offer of companyversion was withdrawn. Subsequently he applied for companyversion from Sector 35 to Sector 44. Findings The only companyversion which took place was from Sector 35 to Sector 44 for which companyversion charges were deposited. It is a matter under the exclusive companypetence of the Authority and its Chief Executive as to whether it was to be treated as two companyversions or one companyversion only. It appears that it was a subtle and fine way to help a fellow officer. In any event Smt. Neera Yadav had approved the second application on 26.10.1994. The file regarding the allotment and companyversion of plot of Shri Ravi Mathur is number traceable in NOIDA but that is for the Authority to take appropriate action. para 1.9.5 Allegation No. xiii A 13 hectare City Park situated near Sectors 24, 33 and 35 in NOIDA was destroyed and a new residential Sector 32 in violation of the Master Plan was carved out companyprising of 200 plots. Findings The procedure as prescribed in the 1991 Regulations was number followed while making the change of land use. para 1.13.7 The decision of land use change was based on logic but the proposal should have been put up before the Board. The then Chief Architect Planner did number point out this legal requirement and failed in his primary duty in advising the ACEO and CCEO. para 1.13.7 There was numberurgency for the development work in this sector. The development work was started and awarded without following the tender procedure in flagrant violation of established procedure for which the then Chief Project Engineer and the then General Manager F are responsible. para 1.13.7 The Board has taken its duties casually and there was numberserious effort to check, analyse and advise. para 1.13.7 So far as these allegations are companycerned, it is evident from the record that M s Anil Kumar Co. had been allotted originally the work on the basis of tender for Rs. 2.75 crores in Sector Gamma in Greater NOIDA, in companynection with the companystruction of water drains. However, they had been awarded additional work by Shri Ravi Mathur, IAS, respondent number 4, worth Rs.3.75 crores on a deviation basis. In fact, awarding such work cannot be termed as an addition or additional work because the work is worth Rs.1 crore more than the amount of original companytract. In such a fact-situation, even if there had been numberfinancial loss to the Greater NOIDA, indisputably, the additional work for such a huge amount had been awarded without following the procedure prescribed in law. More so, there is numberhing on record to show as to whether the said companytractor M s Anil Kumar Co. was eligible to carry out the companytract worth Rs.6.50 crores. Awarding the companytract under the garb of so-called extension, amounts to doing something indirectly which may number be permissible to do directly. Admittedly, such a companyrse of action is number permissible in law. It is a settled proposition of law that whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous companytrivance on the principle of quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud, which means whenever a thing is prohibited, it is prohibited whether done directly or indirectly. See Swantraj Ors. v. State of Maharashtra, AIR 1974 SC 517 Commissioner of Central Excise, Pondicherry v. ACER India Ltd., 2004 8 SCC 173 and Sant Lal Gupta Ors. v. Modern Co-operative Group Housing Society Ltd. Ors., JT 2010 11 SC 273 . In Jagir Singh v. Ranbir Singh Anr., AIR 1979 SC 381, this Court has observed that an authority cannot be permitted to evade a law by shift or companytrivance. While deciding the said case, the Court placed reliance on the judgment in Fox v. Bishop of Chester, 1824 2 B C 635, wherein it has been observed as under- To carry out effectually the object of a statute, it must be companystrued as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined. The second work had been allotted to M s Techno Construction Co. worth Rs.1.00 crore without inviting fresh tenders etc., on the ground that earlier a companytract for execution of similar work i.e. companystruction of road had been awarded to it. In view of the fact that there was numberurgency, such a companytract should number have been awarded. Undoubtedly, the respondent number4 is guilty of proceeding in haste and that amounts to arbitrariness. While dealing with the issue of haste, this Court in the case of Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia Ors., 2004 2 SCC 65, referred to the case of Dr. S.P. Kapoor v. State of Himachal Pradesh Ors., AIR 1981 SC 2181 and held that when a thing is done in a post-haste manner, mala fide would be presumed. In Zenit Mataplast Private Limited v. State of Maharashtra Ors., 2009 10 SCC 388, this Court held Anything done in undue haste can also be termed as arbitrary and cannot be companydoned in law. Thus, in case an authority proceeds in undue haste, the Court may draw an adverse inference from such companyduct. It further creates a doubt that if there was numbersufficient reason of urgency, what was the occasion for the respondent number4 to proceed in such haste and why fresh tenders had number been invited. It is evident from the record that the respondent number4 had originally been allotted plot number118, Sector-35 measuring 360 sq. meters which was companyverted to plot numberG-25, Sector-27 measuring 392 sq. meters. However, as the respondent number4 did number deposit the required charges the said order of companyversion stood withdrawn. By subsequent companyversion, respondent number4 got plot numberA-15 in Sector-44. Thus, two companyversions had been made on different dates. However, he paid the transfer charges only once to the tune of Rs.1.80 lacs. It is alleged that by first companyversion, the respondent number4 number only got the plot in a better location, but also a plot of bigger size. Second allotment was further, as alleged, in a far better geographical position. There is numberprovision under the Act 1976 or Regulation 1991 for companyversion. It is rather governed by Office Order No.4070/ NOIDA DCEO/92 dated 3.7.1992. The relevant part thereof basically provides that companyversion was permissible only in case of residential plots. Relevant part thereof reads as under In case of residential plots, only cancelled and surrendered properties shall be offered for companyversion The details of availability of properties shall be available in the office of Dy. Chief Executive Officer. xx xx xx xx xx xx All expenses pertaining to companyversion such as companyversion charges, locational benefit charges, stamp duty, registration charges etc. shall be borne by the allottee. xx xx xx Conversion shall number be allowed more than once to any allottee. xx xx xx Chairman-cum-Chief Executive Officer may relax the above guidelines in exceptional circumstances. The aforesaid Office Order dated 3.7.1992 stood modified vide order dated 27.9.1993 when the respondent number4 was the CEO, NOIDA to the effect that a large number of vacant plots were available in old developed sectors. The same may be included in the plots availability list. That the list of available plots had been expanded during the period when the respondent number4 was CEO, NOIDA and unallotted plots of various sectors including Sector 27 were also included in that list in which the respondent number4 himself got the first companyversion. It is a matter of investigation as to whether the Order dated 3.7.1992 was modified vide Order dated 27.9.1993 with ulterior purpose. Section 12 of the Act 1976 makes the provisions of Chapter VII and Sections 30, 32, 40 to 47, 49, 50, 51, 53 and 58 of the U.P. Urban Planning and Development Act 1973 hereinafter referred to as the Act 1973 mutatis mutandis applicable to the Act 1976. Section 17 of the Act 1976 declares that the Act 1976 would have an overriding effect over the provisions of the Act 1973. Section 18 companyfers the power on the State Government to make rules by issuing a Notification for carrying out the purposes of the Act 1976. Section 19 of the Act 1976 provides for the framing of regulations by the NOIDA in respect of holding of meetings defining the powers and duties of the CEO and management of properties of the Authority etc. In view thereof, the New Okhla Industrial Development Area Preparation and Finalisation of Plan Regulations 1991 hereinafter called as Regulations 1991 had been framed with the prior approval of the State Government as required under Section 19 of the Act 1976 and, therefore, have statutory force. By virtue of the provisions of subsection 2 b of Section 6 of the Act 1976, it is a statutory requirement that in the plan to be prepared by the NOIDA, it must necessarily provide as to for what particular purpose any area site is to be used, namely, industrial, companymercial or residential. The Authority is companypetent under sub-section 2 c of Section 6, to regulate the companystruction etc. having regard to the nature for which the site has been earmarked. Section 8 of the Act 1976 restrains the use of any site for the purpose other than for which it is earmarked in the Master Plan. Section 9 prohibits the use of any area or erection of any building in companytravention of Regulations 1991. Section 14 of the Act 1976 clearly provides for cancellation of allotment and resumption reentry, where the allotment had been made in companytravention of the rules and regulations. In case the Authority wants to change the user of the land, companydition precedent remains to amend the Master Plan. There is numberhing on record to show that any amendment had ever been made either in the Master Plan or in the Regulations 1991 before the change of user of land, when a 13 hectare City Park situated near Sectors 24, 33 and 35 was abolished and a new residential Sector 32 was carved out companyprising 200 plots. Even if the said change made by Shri Ravi Mathur, IAS, respondent number4 stood nullified, subsequently by Smt. Neera Yadav, respondent number7, it does number exonerate him from companymitting an illegality. It is a matter of investigation as to what was the motive for which such a change had been made by Shri Ravi Mathur, IAS, respondent number4, unauthorisedly and illegally. Admittedly he was number companypetent to do so without seeking the amendments as mentioned hereinabove. The State or the public authority which holds the property for the public or which has been assigned the duty of grant of largesse etc., acts as a trustee and, therefore, has to act fairly and reasonably. Every holder of a public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in him are meant to be exercised for public good and promoting the public interest. Every holder of a public office is a trustee. State actions required to be number-arbitrary and justified on the touchstone of Article 14 of the Constitution. Action of the State or its instrumentality must be in companyformity with some principle which meets the test of reason and relevance. Functioning of a democratic form of Government demands equality and absence of arbitrariness and discrimination. The rule of law prohibits arbitrary action and companymands the authority companycerned to act in accordance with law. Every action of the State or its instrumentalities should neither be suggestive of discrimination, number even apparently give an impression of bias, favouritism and nepotism. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law. The Public Trust Doctrine is a part of the law of the land. The doctrine has grown from Article 21 of the Constitution. In essence, the action order of the State or State instrumentality would stand vitiated if it lacks bona fides, as it would only be a case of companyourable exercise of power. The Rule of Law is the foundation of a democratic society. Vide M s. Erusian Equipment Chemicals Ltd. v. State of West Bengal Anr., AIR 1975 SC 266 Ramana Dayaram Shetty v. The International Airport Authority of India Ors., AIR 1979 SC 1628 Haji T.M. Hassan Rawther v. Kerala Financial Corporation, AIR 1988 SC 157 Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. Ors., AIR 1991 SC 537 and M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu Ors., AIR 1999 SC 2468 . Power vested by the State in a Public Authority should be viewed as a trust companypled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact-situation of a case. Public Authorities cannot play fast and loose with the powers vested in them. A decision taken in arbitrary manner companytradicts the principle of legitimate expectation. An Authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood companyferred. In this companytext, in good faith means for legitimate reasons. It must be exercised bona fide for the purpose and for numbere other. Vide Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 Sirsi Municipality v. Ceceila Kom Francis Tellis, AIR 1973 SC 855 The State of Punjab Anr. v. Gurdial Singh Ors., AIR 1980 SC 319 The Collector Distt. Magistrate Allahabad Anr. v. Raja Ram Jaiswal, AIR 1985 SC 1622 Delhi Administration Now NCT of Delhi v. Manohar Lal, 2002 7 SCC 222 and N.D. Jayal Anr. v. Union of India Ors., AIR 2004 SC 867 . In view of the above, we are of the companysidered opinion that these allegations being of a very serious nature and as alleged, the respondent number4 had passed orders in companyourable exercise of power favouring himself and certain companytractors, require investigation. Thus, in view of the above, we direct the CBI to have preliminary enquiry and in case the allegations are found having some substance warranting further proceeding with criminal prosecution, may proceed in accordance with law. It may be pertinent to mention that any observation made herein against respondent number4 would be treated necessary to decide the present companytroversy. The CBI shall investigate the matter without being influenced by any observation made in this judgment. The writ petition stands disposed of accordingly. Before parting with the case, we would like to express our gratitude and record appreciation to Dr. Rajeev Dhavan, learned senior companynsel for rendering companymendable assistance to the Court as Amicus Curiae. J. S. SINGHVI J. Dr. B.S. CHAUHAN New Delhi, May 9, 2011 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION CIVIL NO. 529 OF 1998 Naresh Pratap Singh Petitioner Versus State of U.P.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 571 of 1987. From the order dated 5.12.1986 of the Customs Excise and Gold Control Appellate Tribunal, New Delhi in Appeal No. 424/86-B-2. R. Andhyarujina, F.H.J. Talyarkhan, Shri Narain, R.K. Krishnamurthi and Sandeep Narain for the Appellants. K. Ganguli, P. Parmeswaran and Ms. Radha Rangaswamy for the Respondents. The Judgment of the Court was delivered by A RANGANATH MISRA, J. This appeal under section 130-E of the Customs Act is directed against the decision of the Customs, Excise Gold Control Appellate Tribunal, New Delhi, by which the Tribunal has reversed the appellate decision of the Collector of Customs Appeals , Bombay. The short point involves in this appeal is as to whether the imported special purpose companyplex machine has to be charged to customs duty under item 89.59 1 as claimed by the Revenue or under 84.45/48 of the tariff schedule as maintained by the appellant. If the appellants claim is accepted the duty is at the rate of 40 per cent while if the departments stand is maintained it is at the rate of 60 per cent. The Assistant Collector took the view that the imported machine was number manufacturing carburettors and was discharging an individual function of plugging holes in the carburettor body with the help of lead shots. Therefore, the appropriate entry was 84.59 1 of the Customs Tariff. The appellant challenged the order of the Assistant Collector by preferring an appeal to the Collector Appeals . He took the view that the imported machine by plugging holes on the carburettor body with the help of lead shots was clearly a machine which was fully companyforming to the description of a machine for treating metals inasmuch as it was treating carburettor body and preparing it for being revetted. The plugging on the carburettor body, the Collector felt, was, therefore, in the nature of treatment on the metalic body for making it revetable subsequently even otherwise also the machine by plugging holes on the carburettor body was companyfirming to the description of a machine tool as given under heading 84.54/48 of the Customs Tariff. He therefore, accepted the appellants companytention. On further appeal the Tribunal after discussing the stand-point of the two sides came to the following companyclusion Our companysidered view is that the function of the machine is to plug the holes of carburettor body. The cutting or trimming operation is incidental to this function as it removes the extruded portion of the lead shots. The function of checking is also a part of the main function of plugging as the object of checking is to ensure that the plugging has been done perfectly to make it air-tight. None of these functions can be companysidered to be treating metal within the meaning of sub-heading 2 of Tariff Heading 84.59. The function of plugging the holes of carburettor body does number amount to working metal. It does number change the shape or form of the metal. The portion of the machine which cuts the extruded portion of lead shot is number a reaming machine working the internal surface of an existing hole to exact dimension within the meaning of Explanatory Note 84.45 A 5 of the CCC N Volume 3 , Chapter 84.45. The imported machine in question does number fall within the definition of machine tool given in MC. Graw Hill Dictionary of Scientific and Technical Term as cited by the learned S.D.R. Classification of the impugned machine under Tariff Heading 84.45/48 is, therefore, ruled out. Even by taking all the functions of the machine into companysideration, the classification for the purpose of customs duty will have to be determined keeping in view Section Note 3 in Section XVI and Chapter Note 5 of Chapter 84 of the First Schedule to the Customs Tariff Act, 1975, according to which the principal function will be determining factor. The principal function of this machine is to plug the holes of carburettor body. The machine does number fall under any of the heading of Chapter 84 of the Tariff. 84.59 of Schedule I provides Machines and mechanical appliances having individual functions, number falling within any other heading of this Chapter 1 2 60. The entry is, therefore, a residuary one and indisputably if any other entry applies, application of entry 84.59 is ruled out. The appellant maintains that the appropriate entry to apply to its case is 84.45/48. That provides Machine tools for working metal 40. Machine tool, according to Tool Engineers Handbook published by Mc Graw Hills means any machine operating other than by man power which employs a companytact tool for working natural or synthetic material. Mc. Graw Hill Dictionary of Scientific and Technical Terms A gives the following meaning A stationary power driven machine for the shaping, cutting, turning, boring, drilling, grinding or polishing of solid parts, especially metals. Even according to the Department, machine tools companying under entry 84.45 are machines used for shaping or surface working metal or metal carbides by either cutting away or otherwise removing metal or metal carbides for example, lathes, drilling, planing, slotting, milling or grinding machines . changing the shape or form of the metal without removing any of it. The numbere indicates that machine tools in general remain classified under this heading even if specialised for a particular industry. Machine tools include slotting machines, drilling and boring machines, tapping machines, reaming machines and riveting machines. Counsel for the appellant produced before us a carburettor without being treated by the machine and another which has already been treated. He also produced a lead shot as also a numberle and indicated the drilling process which is carried on by the machine on the carburettor. We are of the view that the machine in question is indeed a multy-purpose one and keeping its performance in view we are inclined to agree with the submission of the companynsel for the appellant that the machine is a machine tool working on metal and should legitimately find its way into entry 84.45/48. Once it is so identified it does number get into the residuary entry. In our view the Collector had reached the companyrect companyclusion. The appeal is allowed. The order of the Tribunal is vacated and that of the Collector is restored. Parties are directed to bear their own companyts.

J U D G M E N T With C.A. No. 1524/1999 ARIJIT PASAYAT,J This is the second journey of the parties to this Court. The basic issue is whether the appellants herein were legally recruited as teachers during the period from 1981 to 1983. These two appeals are directed against two judgments of the High Court of Patna. While C.A. No.916/1999 is directed against the judgment dismissing the writ petition filed by 55 persons including the appellants, C.A. No.1524/1999 is directed against the judgment in Letters Patent Appeal whereby the order of the learned Single Judge was affirmed. The writ petition was filed by the present appellants. Factual background so far as undisputed is essentially as follows About 2000 persons were appointed as primary teachers in various districts of Bihar. As legality of the appointments was questioned in various forums, enquiries were companyducted. Orders were passed terminating the services of the teachers including the appellants who had been appointed during the relevant period. Such orders of termination were challenged before the High Court, which by judgment dated 11.8.1989 directed to take up the appointment of teachers in elementary schools in various districts by inviting applications from the writ petitioners as well as other persons who had been removed because they were illegally recruited by the District Superintendent of Education. It was inter alia observed that if they had become over age during the period of their service on stipend and removal, the same was number to be taken numbere of. The relevant portion of the judgment which has great relevance so far as the present dispute is companycerned reads as follows On the facts of this case, we observe that persons who are qualified for appointments deserve a companysideration and appointment, accordingly on such posts for which they are qualified in preference to other candidates who may be qualified. We, accordingly, direct the respondents to proceed to take up the appointments of the teachers in the Elementary Schools on Santhal Pargana and Deoghar by inviting applications from the petitioners and other persons who have been removed because they were illegally recruited by the District Superintendent of Education and select if they satisfy the eligibility companyditions and appoint them. In doing so the respondent State must relax the age limit in case of any of the petitioners are found to have become over age during the period of service on stipend and removed. The petitioners and or any other candidate who may be appointed in the vacancy so created on account of removal of the petitioners and other persons appointed by the District Superintendent of Education shall however number claim any benefit of the appointment illegally given to them by the District Superintendent of Education but shall receive emoluments and other benefits by dint of their selection and appointment in accordance with law. Said judgment of the High companyrt and companynected judgments were assailed before this Court in several special leave to appeal petitions. By order dated 7.2.1991, they were disposed of inter alia with the following directions In these circumstances instead of taking into account the companytradictory companyclusions reached in these cases we have heard companynsel for the parties. We numberice that the High Courts direction to the State to hold afresh selection has become final against the State inasmuch as the State has number challenged the order. We direct that within three months and in any case number beyond 30th June, 1991 the selection process companytemplated in the High Courts order shall be worked out. In companysidering the suitability for selection the Rules which were in force at the time the teachers were recruited should be taken into account and disqualification shall number be imposed on the basis of any altered Rules. It will also be open to the State to companysider the claim of teachers who came after the altered Rules in terms of the Rules in force. The bar of age, we re-iterate the direction of the High Court shall number be used against the teachers for their selection. Pursuant to the directions companytained in the earlier judgment of the High Court as affirmed by this Court, a fresh exercise was undertaken. Since the present appellants were number selected, writ petitions were filed before the High Court. In the writ petition which was filed by 55 persons and disposed of by the Division Bench the companyclusions were essentially as follows 1 Some of the writ petitioners Writ petitioners Nos. 5, 18, 23, 28, 41 and 53 were over age at the time of their initial appointment and their cases were, therefore, wholly companyered by the directions given by the High Court, and they were number entitled to relaxation of age 2 So far as writ petitioners Nos. 6, 26, 30 and 55 are companycerned, the stand was that they had number crossed the age limit at the time of making the applications for appointment and, therefore, were within the age limit at the time of initial appointment and were, therefore, entitled to relaxation of age in terms of the judgment passed by the High Court earlier and affirmed by this Court. This plea was turned down on the ground that what was relevant for companysideration related to the age at the time of initial appointment and number making of the application 3 As regards writ petitioner No.24, he was under age at the time of appointment. He was permitted to file a representation before the Director of Primary Education and the High Court ordered that his case would be companysidered afresh 4 In respect of writ petitioners Nos. 9 and 17, it was numbered that they were refused absorption on the ground that they had number made any application in response to advertisement issued pursuant to the order passed by this Court. Since numbermaterial was placed to substantiate this stand and numberreasons had been companymunicated for number-absorption, direction was given to companysider representations if made by them within one month from the date of judgment. The said judgment is under challenge in C.A. No.916/1999. Appellants have taken the stand that in terms of this Courts judgment, a person who was number over age on the date of initial appointment was to be companysidered. Though it was companyceded before the High Court that they were over age at the time of initial appointment, much would turn as to what is the date of initial appointment. The High Court had number companysidered as to what was the applicable rule so far as the eligibility regarding age is companycerned. Learned companynsel appearing for the respondent-State however submitted that having made a companycession before the High Court that they were over age on the date of appointment, it is number open to the appellants to take a different stand. The crucial question is whether appellants were over age on the date of their initial appointment. It is true that there was companycession before the High Court that they were over age on the date of initial appointment. But there was numberconcession that they were over age at the time of making the application. There was numberdefinite material before the High Court as to what was the eligibility criteria so far as age is companycerned. No definite material was placed before the High Court and also before this Court to give a definite finding on that aspect. What happens when a cut off date is fixed for fulfilling the prescribed qualification relating to age by a candidate for appointment and the effect of any number-prescription has been companysidered by this Court in several cases. The principles culled out from the decisions of this Court See Ashok Kumar Sharma and Ors.v. Chander Shekhar and Anr. 1997 SCC 18, Bhupinderpal Singh v. State of Punjab 2000 5 SCC 262 and Jasbir Rani and ors. v. State of Punjab and Anr. 2002 1 SCC 124 are as follows The cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules If there is numbercut off date appointed by the rules then such date shall be as appointed for the purpose in the advertisement calling for applications and If there is numbersuch date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications were to be received by the companypetent authority. It has, therefore, to be decided by the authorities as to which of the three companyditions indicated above were applicable to the facts of the case. In the absence of definite material, we think it appropriate to direct the authorities to take a decision within a period of four months from today, as to whether the appellants or one of them was eligible by applying the tests indicated above. These directions shall apply to the writ petitioners who are appellants in the present appeal and to numberody else. The other directions given by the High Court so far as the writ petitioners Nos. 9, 17 and 24 are companycerned do number warrant any interference as there has been numberchallenge by the State Government. The appellants in C.A. No.1524/1999 have taken a stand that the learned Single and the Division Bench of the High Court proceeded on the basis as if they had questioned number-inclusion in the panel prepared in 1984-85. They were appointed in the year 1983 and, therefore, the question of their assailing number-inclusion in the panel in 1984-85 does number arise. It was further submitted that there was specific challenge as regards companyclusion that they were overaged. This was pointedly urged before the High Court both before learned Single Judge and Division Bench . But the same was number companysidered. Learned companynsel for the State Government in opposition submitted that the appellants had taken different stands before the High Court and it is number open to them to take different stands before this Court. He, however, accepted that in the memorandum of appeal before Division Bench age question was raised. Learned Single Judge proceeded on the basis as if the writ petitioners had staked their claim based on the panel which was prepared in 1984-85. This is evident from the following observations The petitioners have filed the present applications for their appointment to the post of Assistant Teachers in the district of Dumka and Sahebganj on the basis of the panel which was prepared in 1984-85. Before the Division Bench, as the records show, there was numberstand taken that the learned Single Judge proceeded on erroneous factual premises. On the companytrary, the following observation of the Division Bench would show the definite stand that was taken by the appellants before it This Letters Patent Appeal arises of the impugned order dated 23.4.1988 passed by the learned Writ Court wherein the appointment to the post of the Assistant Teachers in the District of Dumka and Sahebganj on the basis of panel, which was prepared in 1984-85 was under challenge. When the aforesaid aspects were pointed out to the learned companynsel for the appellants, he submitted that the learned Single Judge and the Division Bench have erroneously recorded the submissions. They also did number companysider specific plea that appellants were number overaged. It is number open for the appellants to take such stand before this Court, as they are bound by the observations of the High Court. If there was any wrong recording of the stands, the companyrse to be adopted is well known. If really there was numberconcession, or a different stand was taken, the only companyrse open to the appellant was to move the High Court in line with what has been said in State of Maharashtra v. Ramdas Shrinivas Nayakand Anr. 1982 2 SCC 463 . In a recent decision Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors. 2002 AIR SCW 4939 the view in the said case was reiterated by observing that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are companyclusive of the facts so stated and numberone can companytradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is the only way to have the record companyrected. If numbersuch step is taken, the matter must necessarily end there. It is number open to the appellant to companytend before this Court to the companytrary. It is also number open to companytend that a plea raised was number companysidered. In Daman Singh and others, etc. vs. State of Punjab and others, etc. AIR 1985 SC 973 it was observed in para 13 as follows The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were number companysidered. We attach numbersignificance to this submission. It is number unusual for parties and companynsel to raise innumerable grounds in the petitions and memorandum of appeal etc., but, later, companyfine themselves, in the companyrse of argument to a few only of those grounds, obviously because the rest of the grounds are companysidered even by them to be untenable. No party or companynsel is thereafter entitled to make a grievance that the grounds number argued were number companysidered. If indeed any ground which was argued was number companysidered it should be open to the party aggrieved to draw the attention of the companyrt making the order to it by filing a proper application for review or clarification. The time of the superior companyrts is number to be wasted in enquiring into the question whether a certain ground to which numberreference is found in the judgment of the subordinate companyrt was argued before that companyrt or number? In usual companyrse stands taken before this Court would have been ignored in view of the settled position of law indicated above.

Leave granted. The matter stood adjourned from time to time awaiting the decision of the BIFR. The BIFR has since passed an order on 26.3.2008 the material portion whereof reads as under Having companysidered the facts on record, the Bench observed that in the hearing held on 12.3.2007, the Bench had directed the promoters of the companypany to submit fully tied up proposals jointly or severally, to IDBI OA within three months, in terms of Honble AAIFR order dated 24.5.2006. IDBI OA was directed to submit a fully tied up DRS to the Board within two months thereafter. The cut-off date for the scheme was to be taken as 30.6.2007. Notwithstanding the interim orders of status quo of the Honble AAIFR, the final cut-off-date given by the Board companytinued to be 30.6.2007. -2- 17.1 As per the standard guidelines of the Board for preparation of rehabilitation scheme, the companypany was required to be regular in the payment all its current dues arising after the cut-off-date, since the recovery of such dues was number companyered in the proposed rehabilitation scheme. 17.2 The Bench observed from the companypanys audited balance sheet for 2006-07 that the companypany was working and paying the current statutory dues also. 17.3 Therefore, the Bench permits the Commercial Tax Department, Government of Uttar Pradesh to recover its outstanding dues, due after 30.6.2007, i.e. the cut-off-date given by the Board vide its final order dated 12.3.2007 regarding preparation of the rehabilitation scheme.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 605 of 1964. Appeal by special leave from the judgment and decree dated April 12, 1963 of the Andhra Pradesh High Ccurt in S.A. No. 124 of 1959. Ram Reddy and A. V. V. Nair, for the appellant. R. Gokhale, S. P. R. Vital Rao, K. Rajendra Chaudhari and K. R. Chaudhuri, for the respondent. The Judgment of the Court was delivered by Subba Rao, C.J. This appeal by special leave raises the question whether a suit would lie at the instance of the present trustees of a temple for rendition of accounts of the management of the temple by the ex-trustees. The appellant is Sri Vedagiri Lakshmi Narasimha Swami temple situated at Narasimhuly konda, Nellore taluk, in the State of Andhra Pradesh, represented by its trustees. The respondent and two others were number-hereditary trustees of the said temple and functioned as such for a term of five years ending with January 1951. The respondent was the managing trustee during that period. The new trustees were appointed by order of the Hindu Religious Endowments Board dated January 21, 1951 but they were able to obtain possession of the temple only on July 21, 1952. They, representing the temple, filed O.S. No. 246 of 1953 in the Court of the Subordinate Judge, Nellore against the respondent and others for the following three reliefs 1 to direct all or such of the defendants as may be found liable to render a true and proper account of their management of the temple and its properties since the date of their functioning as trustees and to pay over to the new trustees such amounts as may be found due 2 to assess the amount due to the temple as a result, of the various acts of malfeasance, misfeasance and numberfeasance of the defendants 1 to 3 in respect of their management, and to direct them to pay the same to the new trustees and 3 to direct the defendants 1 to 3 to deliver to the new trustees all documents, accounts, registers, s. 38 register, jewels and movable properties, after rendering a true account thereof and failing such delivery, to pass a decree against the defendants for their value, or pass such decree against them for such damages as the temple had sustained. In the plaint, the new trustees alleged that the defendants were guilty of acts of misfeasance, malfeasance and numberfeasance and also of gross negligence. The defendants, inter alia, apart from denying the said allegations made against them, pleaded that the suit was number maintainable in a civil companyrt in view of the provisions of s. 87 of the Madras Hindu Religious and Charitable Endowments Act, 1951 Act 19 of 1951 , hereinafter called the Act. The learned Subordinate Judge, by his judgment dated August 12, 1953, held that the suit was maintainable. He also found that defendants 1 to 3 were liable to render an account of their management during the period of their trusteeship and to pay damages for the loss suffered by the temple on account of theinr acts of misfeasance, malfeasance and numberfeasance. In the result, he passed a preliminary decree in favour of the new trustees directing the respondent and defendants 2, 5 and 6 the legal representatives of defendant 3, to render a true and proper account of their management of the temple and its properties for the period companymencing from the beginning of 1946 to the date when the plaintiffs took possession of the temple in July 1952 and to pay such amounts as may be found due from them on taking accounts. The 1st defendant, the ex-managing trustee of the temple, preferred an appeal against the said decree to the companyrt of the District Judge, Nellore. To that appeal, the plaintiffs were made respondents. Pending the appeal, the plaint was amended and the words of pass such decree against them for such damages as the temple has sustained thereby were deleted from prayer 3 of the plaint. The learned advocate for the plaintiffs made an endorsement on the plaint and the appeal memo stated as follows Plaintiffs have given up prayer in respect of the damages as endorsed by the learned advocate on behalf of the plaintiffs on the plaint on 20-8-1958. The learned District Judge also recorded in his judgment that the appellant respondent herein did number press his appeal in respect of the claim for damages given up by the plaintiffs. Prima facie this amendment related only to the prayer to deliver to the new trustees the documents and other movable properties and did number affect the other prayers for rendition of accounts on the ground of malfeasance, misfeasance and numberfeasance of the defendants. The learned District Judge understood the finding given by the learned Subordinate Judge as follows Setting out all these things in detail in paras 13 and 14 of his judgment, the learned Subordinate Judge came to the companyclusion that it was sufficient to say that there is liability to account in respect of the management on the part of the ex-trustees, i.e., defendants 1 and 3, and that they are liable to pay to temple whatever damages it has suffered on account of their acts of misfeasance, malfeasance and numberfeasance. After companysidering the relevant evidence and the case law on the subject, he came to the following companyclusion I have numberhesitation to hold that the plaintiffs have established liability for extrustees to render account of their management to deliver possession of the other property yet to be delivered and also the records mentioned in the plaint. The learned District Judge, therefore, agreed with the learned Subordinate Judge that the defendants had to render accounts of their management of the temple and to pay to the temple damages suffered by it on account of their acts of misfeasance, malfeasance and numberfeasance. In the result the decree of the learned Subordinate Judge was companyfirmed. But, on Second Appeal, Jaganmohan Reddy, J., of the Andhra Pradesh High Court, held that the suit for accounts was number maintainable. The reasoning of the learned Judge is found in the following observations It is true that a suit for back accounting on the authority of the decisions cited above does number lie and unfortunately in this case though the frame of the suit was for recovery of damages for negligence of the trustees in number taking leases, in number filing rent suits, in number companylecting rents and generally for other acts of negligence, that plea was given up by the respondents, probably because they were number in a position to establish these facts. The learned advocate for the respondents admits that this plea was given up by the clients and in the circumstances the only relief that the respondents claim against the appellant number is one for general accounting relating to the management or administration of the trust property and applying the principle laid down by the two judgments of this Court in Venkataratnam v. Narasimha Rao 1 and Sri Saraveswaraswami Vari temple v. Veerabhadrayya 2 , 1 cannot but hold that suit will number he and in this view, the appeal is allowed and the judgments and the decrees of the companyrts below are set aside. Though, prima facie, as we have said earlier, we are inclined to hold that what was given up by the appellant was only a part of the third relief, in view of the unambiguous admission made by the learned advocate for the appellant and recorded in the judgment of the High Court, we have numberoption but to hold that the appellant had given up the plea of wilful default against the defendants and companyfined the relief only to a rendition of accounts by them in respect of their management of the temple during their tenure and to pay the amount that might be found due to the appellant. Mr. P. Ram Reddy, learned companynsel for the appellant-temple, raised before us three points 1 The suit was for damages for gross negligence and the learned Judge did number appreciate the companyrect scope of the companycession made by the learned advocate appearing for the temple before him. 2 Section 93 of the Act is number a bar to a suit by the present trustees against the ex-trustees for rendition of accounts of their management of the temple 1 1960 2 Andh. W.R. 319. M15Sup.CI/66-5 2 1961 1 Andh. W.R. 25J. properties and recovery of the amounts due from them. 3 The learned Judge went wrong in holding that a suit for back-accounting would number lie. On the first point we have already expressed our opinion earlier that, in view of the unambiguous companycession made by the learned advocate for the appellant before the High Court, we must hold that the suit, after the amendment of the plaint, was companyfined only to rendition of accounts, number on account of wilful default or negligence, but only for rendition of accounts by the ex-trustees of their management and to pay the amounts due to the present trustees. The question, therefore, is whether the present trustees can demand a rendition of accounts from the ex-trustees in respect of their management without alleging against them any acts of negligence or wilful default and, if so, whether s. 93 of the Act was a bar to the maintainability of a suit for the relief of rendition of accounts in a civil companyrt. It is companymon place that numbertrustee can get a discharge unless he renders accounts of his management. This liability is irrespective of any question of negligence or wilful default. In the present case, the ex-trustees admittedly did number give an account of their management though they put the plaintiffs in possession of the properties in the year 1952 and that too after adopting a companyrse of obstructive attitude. They are, therefore, liable to render accounts of their management to the present trustees. The decisions relied upon by the learned Judge to number support the view that an ex-trustee need number render accounts in the absence of allegations of negligence or wilful default. In V. K. Kelu Achan v. C.S. Sivarama Pattar 1 one of the questions raised was whether the 1st defendant therein, who was a karnavan of a tarwad and also the manager of temple properties, should be made to give a general rendition of accounts of his management from 1900. It was found in that case that the 1st defendant was number personally responsible for any loss to the temple, that numberrelief for rendition of accounts was asked for against him and that he was number the person who was maintaining the accounts. on those facts, the High Court refused to give a decree against the 1st respondent for back-accounting. In the companyrse of the judgment the following observations were made It is a general principle also that back accounting will number be decreed except on proof of dishonesty and malversation, and we have number found any such proof here against the present trustee. These observations do number circumscribe the scope of the companyrts discretion, but only lay down a guide for its exercise. They must A.I.R. 1928 Madras 879, 887. be read in the companytext of the facts found in that case. Nor the decision in The Madura etc. Devasthanams v. Doraiswami Nayudu 1 lays down any such wide proposition. There, the executive officer of a temple sought to recover from its extrustee a certain amount by way of damages on foot of gross negligence. It was found that the trustee was number guilty of any wilful default and that he was justified in acting upon the vouchers and accounts furnished by the law department of the Devasthanam and also that it was number established that any items were really due to the temple. On those facts the suit was dismissed. Briefly stated, that was a suit for rendition of account on the ground of wilful default in the companyrse of management of the temple affairs and, as numberwilful default had been established, the suit for accounts was dismissed., It is number an authority for the position that unless wilful default is established an ex-trustee need number account to the present trustee and to pay to him the amount due under the said accounts. In the case of rendition of accounts by an ex-trustee to a present trustee, it will necessarily relate to back accounting, for numberquestion of accounting in future arises in his case. The question that invariably arises in such a companytext is as to what period he shall be made liable to render accounts. That depends upon the facts of each case. Sir Thomas Flumer, M. R., said in Attorney General v. Exetor Mayor 2 It has, I think, been properly stated on both sides, that there is numberfixed limit of time in directing an account against a trustee of a charity, It does number, however, follow that the relief will be given after a great length of time, it being the companystant companyrse of Courts of Equity to discourage stale demands even in cases of fraud, in which, if recent, there would have been numberdoubt, lapse of time has induced the Courts to refuse their interference. In cases of charities, this principle has often been acted on. When there has been a long period, during which a party has, under an innocent mistake, misapplied, a fund, from the leaches and neglect of others, that is, from numberone of the public setting him right, and when the accounts have in companysequence become entangled, the Court, under its general discretion, companysidering the enormous expense of the enquiries, the great hardships of calling upon representatives to refund what families have spent, acting on the numberion of its being their property, has been in the habit, while giving the relief, of fixing a period to the account. These observations were followed by a Division Bench of the- Madras High Court in Sanyasayya v. Murthamma 3 . Where 1 1943 1 M.L.J. 144. 2 1822 37 E.R. 918. A.I.R. 1919 Madras 943. a suit was filed for an account for the year 1884 and the 1st defendant was asked to account for the management of his father and grand-father, the learned Judges of the Madras High Court fixed the period of accounting at 12 years. The said observations were also followed by the Andhra High Court in Hariharabrahmam v. Janakiramiah 1 and, having regard to the circumstances in that case, the said High Court directed accounts to be taken for a period of six years prior to 1938. In the present case the learned subordinate Judge and the learned District Judge, in exercise of their discretion, having regard to the circumstances of the case, directed the respondent to render accounts of his management from the beginning of the year 1946 to the date when then plaintiffs took possession of the temple in July 1952. We do number see any justification to interfere with the discretion of the companyrts in that regard. The next question is whether s. 93 of the Act is a bar to the maintainability of the suit. The said section reads No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in companyformity with, the provisions of this Act. The learned companynsel for the appellant companytended that in order to invoke this section the following companyditions shall be companyplied with 1 The suit shall be in respect of the administration or management of a religious institution 2 it shall be in respect of any other matter in dispute and 3 for determining or deciding such a suit or other legal proceeding there shall be a provision in the Act if there is such a provision, such a suit or proceeding companyld number be instituted in any companyrt of law except under, and in companyformity with, the provisions of the Act. The further argument was that the administration or management referred to in s. 93 related to s. 58 of the Act, and the other matters of dispute related to s. 57 thereof, and that, as the suit for rendition of accounts did number fall either under s. 57 or under s. 58 of the Act, the present suit for such a relief was outside the scope of s. 93 of the Act. Mr. Gokhale, learned companynsel for the respondent, companytended that Ch. VII of the Act provided for rendition of accounts and a machinery for determining or deciding disputes in respect thereof, and that, therefore, numbersuit or other legal proceeding companyld be taken in any companyrt except under and in companyformity with the provisions of that Chapter. A.I.R. 1955 Andhra 18. Under s. 9 of the Code of Civil Procedure, the companyrts shall have jurisdiction to try all suits of a civil nature excepting suits of which their companynizance is either expressly or impliedly barred. It is a well settled principle that a party seeking to oust the jurisdiction of an ordinary civil companyrt shall establish the right to do so. Section 93 of the Act does number impose a total bar on the maintainability of a suit in a civil companyrt. It states that a suit of the nature mentioned therein can be instituted only in companyformity with the provisions of the Act that is to say, a suit or other legal proceeding in respect of matters number companyered by the section can be instituted in the ordinary way. It therefore imposes certain statutory restrictions on suits or other legal proceedings relating to matters mentioned therein. Now, what are those matters ? They are 1 administration or management of religious institutions and 2 any other matter or dispute for determining or deciding which provision, is made in the Act. The clause determining or deciding which a provision is made in this Act, on a reasonable companystruction, cannot be made to qualify the administration or management but must be companyfined only to any other matter or dispute. Even so, the expression administration or management cannot be companystrued widely so as to take in any matter however remotely companynected with the administration or management. The limitation on the said words is found in the phrase except under and in companyformity with the provisions of this Act. To state it differently, the said phrase does number impose a total bar on a suit in a civil companyrt but only imposes a restriction on suits or other legal proceedings in respect of matters for which a provision is made in the Act. Any other companystruction would lead to an incongruity, namely, there will be a vacuum in many areas number companyered by the Act and the general remedies would be displaced without replacing them by new remedies. The history of this provision also supports the said interpretation. Sub-section 2 of s. 92 of the Code of Civil Procedure says Save as provided by the Religious Endowments Act, 1863, numbersuit claiming any of the reliefs specified in subsection 1 shall be instituted in respect of any such trust as is therein referred to except in companyformity with the provisions of that sub-section. Suits for reliefs mentioned in sub-s. 1 of s. 92 of the Code of Civil Procedure can only be instituted in special companyrts and in the manner mentioned therein. Construing the said sub-section, a Full Bench of the Madras High Court in Appanna v. Narasinga 1 held that a suit by a trustee of a public religious trust against a companytrustee for accounts did number fall within the section, though the relief claimed 1 1922 I.L.R. 45 Madras 113. was the one specified in sub-s. 1 , cl. d . The reason given was that the relief was sought number in the larger interest of the public but merely for the purpose of vindicating the private rights of one ,of the trustees and of enabling him to discharge the duties and liabilities which were imposed upon him by the trust. Another Full Bench of the Madras High Court in Tirumalai Tirupati Devasthanam ,Committee v. Udiavar Krishnayya Sahnbhaga 1 held that the ,said section did number apply where the general trustees of a public temple sued the trustees of certain offerings given to the deity, for accounts, on the ground that in that suit the right of the public was number sought to be enforced but only the personal rights of the trustees qua the trustees. These decisions indicate that s. 92 of the Code of Civil Procedure does number impose a general embargo on filing of a suit in a civil companyrt, but only directs that suits of the nature mentioned in sub-s. 1 thereof shall number be instituted in a civil companyrt except in companyformity with the provisions of the said sub-section. If a suit does number fall within the ambit of s. 92 1 of the Code of Civil Procedure, it is number hit also by sub-s. 2 thereof. When the Madras Hindu Religious Endowments Act 2 of 1927 was passed, in respect of the endowments companyered by that Act, s. 73 of that Act replaced s. 92 of the Code of Civil Procedure. Sub-section 4 ,thereof, which was added by Madras Act X of 1946 read No suit or other legal proceeding claiming any relief provided in this Act in respect of such administration or management shall be instituted except under and in companyformity with the provisions of this Act. The expression except under and in companyformity with the provisions of this Act in the said sub-section is also found in s. 93 of the Act. The scope of the said subsection came under judicial scrutiny in Manjeshwar Srimad Anantheswar Temple v. Vaikunta Bhakta 2 Therein Horwill, J., summarised the legal position reached in respect of the companystruction of that section thus It will be seen therefore that from 54 Mad. 1011 Vythilinga Pandarasannadhi v. Temple Committee, Tinnevelly onwards there was a companysiderable body of opinion that the general scope of s. 73, Hindu Religious Endowments Act, is the same as s. 92, Civil P.C., that the last paragraph of s-. 73 of the Act is meant to refer only to the classes of cases referred to in s. 73 1 and other sections of the Act, and that suits which do number fall within the scope of these sections can be tried under the general law. I have number companye across any case in which these opinions were dissented from or companytrary opinions expressed, A.I.R. 1943 Madras 466. A.I.R. 1943 Madras 228, 230. Sub-section 4 , which companyresponds to s. 93 of the Act, was held number to impose a total bar on a civil suit but only companyfined to suits relating to the classes of cases referred to in s. 73 1 and other sections of the Act. Section 93 of the Act enlarges the scope of s. 73 4 thereof It bars number only suits or legal proceedings in respect of administration or management of religious institutions but also in respect of any other matter or dispute for determining or deciding which provision is made in the Act. By repeating the phrase except under and in companyformity with the provisions of the Act which had received authoritative judicial interpretation when it remained in s. 73 4 of the earlier Act, the Legislature must be held to have accepted the interpretation put upon the phrase by the companyrts. It follows that s. 93 will apply only to matters for which provision has been made in the Act. It does number bar suits under the general law which do number fall within the scope of any section of the Act. Even so, the learned companynsel for the respondent companytended that Ch. VII of the Act provided a companyplete machinery for deciding disputes in regard to accounts and, therefore, numbersuit for accounting against an ex-trustee companyld be filed in a civil companyrt. This interpretation was accepted by two decisions of the Andhra Pradesh High Court. The decision in Venkataratnam v. Narasimha Rao 1 dealt with a case of a suit filed with the permission of the Advocate General for removing the trustee, for framing a scheme for the management of the trust property, for appointing a new trustee and for accounts and other incidental reliefs. The companytesting defendant pleaded inter alia that because of the provisions of the Madras Act 19 of 1951, the suit companyld number be entertained by the civil companyrt, and that s. 93 was a bar to such a suit. The Andhra Pradesh High Court held that s. 93 of the Act clearly interdicted the determination of the subject matter of the suit by a civil companyrt. The reasoning of the decision is summarized thus Now the suit is entirely based on allegations of breach of trust and every one of the reliefs prayed for in the plaint can flow from appropriate action that officers named in the Act may take. The first relief sought in the present plaint can result from action taken under section 45 of the Act the second and third reliefs from action under section 58 the fourth from action under section 60 the 6th relief from action under section 57 and the relief numbered and lettered as 6 a from action under section 87. The High Court also observed In our opinion, all these are matters or disputes for determining or deciding which provision is made in the Act. 1 1960 2 Andh. W.R. 319, 323. On that basis it held that s. 93 of the Act was a bar to the maintainability of the suit. It may be mentioned that the observation that the fourth relief companyld result from action under s. 60 appears to be a mistake, for s. 60 applies only to a defunct religious institution. In Sri Sarveswaraswami Vari Temple v. Rudrapaka Veerabhadrayya 1 Seshachelapati, J., speaking for the companyrt, said thus It will be seen, as companyrectly observed by the learned Subordinate Judge, that the section has two limbs. The first limb interdicts suits or other legal proceedings with respect to the administration or management of the religious institution. The second limb enacts an embargo on suits and legal proceedings on any other matter in dispute for the determination of which a provision had been made in this Act. There, the suit was by the present trustees for the recovery of the temple properties from the hereditary archakas. The High Court held that such a suit was number one in respect of the administration or management of the temple and, therefore, it did number attract the embargo entered in the first limb of the section. This decision, therefore, held that unless the suit fell within the classes of suits mentioned in s. 93 of the Act, the provisions of the section were number attracted. It leads us to the companysideration of the scope of Chapter VII of the Act. If Chapter VII of the Act provides for determining or deciding a dispute in respect of rendition of accounts, s. 93 of the Act would be attracted. The heading of the said Chapter is Budgets, Accounts and Audit. Section 70 provides for the presentation of budgets and the particulars to be mentioned therein. Section 71 enjoins upon a trustee of every institution to keep regular accounts of receipts and disbursements. Section 71 4 prescribes for an audit of the accounts every year. Section 72 directs the auditor to send a report of the results of the audit to the prescribed authorities. Section 73 enumerates the matters in respect of which the auditor has to send his report. Section 74 directs the prescribed authorities to send the said report to the trustees for remedying the defects pointed out therein. The Area Committee, one of the prescribed authorities under s. 74 2 of the Act, has to forward to the Commissioner the report of the auditor along with the report of the trustees, if any, and with his remarks. If the Commissioner thinks that the trustee or any other person is guilty of misappropriation or wilful waste of funds of the ninstitu- 1 1961 1 Andh. W.R. 250, 251. tion or of gross neglect resulting in a loss to the institution, after making the requisite inquiry, certify the amount so lost and direct the trustee or such person to pay within a specified time such amount personally and number from the funds of the religious institution. On the receipt of such an order, the trustee can apply to a companyrt to modify or set aside the same. Instead of filing an application to the Court, he has an alternative remedy to file an appeal to the Government which shall pass such order as it thinks fit. Under sub-s. 7 of s. 74, an order of surcharge under the section against a trustee shall number bar a suit for accounts against him except in respect of the matter finally dealt with by such order. Sub-section 8 thereof provides a machinery for companylecting the said amounts from the trustee or other person by way of surcharge. Relying upon the scheme of this Chapter, it is companytended that it provides an exhaustive and self-contained machinery for scrutinizing the accounts, for orders of surcharge and to recover the amount surcharged from the trustee or other persons and for a suit to set aside such orders or alternatively for an appeal to the Government and that, therefore, numbersuit for rendition of accounts would lie dehors the provisions of the Act. We find it difficult to accept this argument. Chapter VII only provides for a strict supervision of the financial side of the administration of an institution. The scope of the auditors investigation is limited. It is only an effective substitute for the trustee himself furnishing an audited account. It is companycerned only with the current management of a trustee. It does number even exonerate a trustee of his liability to render accounts except to a limited extent mentioned in sub-s. 7 of s. 74 it only facilitates the rendition of accounts. Under sub-s. 7 of s. 74, an order of surcharge under that section against a trustee shall number bar a suit against him except in matters finally dealt with in such order. This shows by necessary implication that a suit can be filed for accounts against a trustee in other respects. In any view, it has numberhing to do with the management of a temple by a previous trustee. It is companytended that under sub-s. 5 of s. 74 the trustee or any other person aggrieved by such order may file a suit in the civil companyrt or prefer an appeal to the Government questioning the order of the Commissioner and, therefore, it is open to any member of the public to file a suit under the Act. Any person there only refers to a person mentioned in sub-s. 3 of s. 74, i.e., a person who is guilty of misappropriation or wilful waste of the funds of the institution etc. It obviously refers to a trustee or some other person in management of the institution who is guilty of misappropriation. We, therefore, hold that Chapter VII of the Act has numberbearing on the question of liability of an ex-trustee to render account to the present trustee of his management. Chapter VII does number provide for determining or deciding a dispute in respect of such rendition of accounts. If so, it follows that s. 93 of the Act is number a bar to the maintainability of such a suit. In the result, we set aside the decree of the High Court and restore that of the learned Subordinate Judge. The respondent will pay the companyts of the appellant throughout.

S.Khehar, J. The respondent was appointed as an Octroi Clerk by the Gram Panchayat, Rakhial, i.e., the appellant before this Court, on 31.3.1977, on temporary basis, inter alia, for a lump sum salary of Rs.200/- per month. In addition to the above, he was number entitled even to dearness allowance or any other allowance s . In terms of the order of appointment, the respondent actually assumed his duties with effect from 1.4.1977. The pleadings of the case reveal, that for a short period, the work of companylecting octroi, which had originally been vested in the Gram Panchayat, came to be executed through a companytractor. The respondent was accordingly required to serve under a companytractor, in companytinuation of his order of appointment dated 31.3.1977. The respondent originally declined to do so. But subsequently, assumed his duties on 10.6.1986 under the Gram Panchayat. Thereafter, the service of the respondent was dispensed with with effect from 30.6.1986. Even though, the challenge raised by the respondent has a chequered history, it is relevant to mention, that the respondent succeeded in Letters Patent Appeal No. 933 of 1995, when a Division Bench of the High Court on 29.7.2004 accepted, that the resolution passed by the Gram Panchayat dated 30.6.1986, for dispensing with the service of the respondent, was number in companysonance with law. The High Court accordingly set aside the above resolution. The respondent was, therefore, ordered to be reinstated, against the post of an Octroi Clerk. By the order passed by the High Court, the respondent was deemed to be treated as having companytinuously rendered service against the post of Octroi Clerk, with effect from the date his services were dispensed with. He was also held entitled to full back wages, besides other companysequential benefits, for the intervening period. The review petition filed by the appellant came to be dismissed by the High Court, vide an order dated 14.09.2004. The operation of the above order passed by the High Court, was stayed by this Court on 24.10.2005. The aforesaid interim order has companytinued till date. It does number appeal to logic, that a temporary employee can be allowed to companytinue in service, when the very purpose for which he is engaged does number survive. The pleadings in this case reveal, that the obligation cast on Gram Panchayats to companylect octroi ceased in the year 2001. As such, even if one was number to interfere with the companyclusion drawn by the High Court, in setting aside the resolution passed by the Gram Panchayat dated 30.06.1986, it is apparent, that the respondent companyld number have companytinued beyond the year 2001, and or be paid emoluments for the period after 2001. In the above view of the matter, we are of the view, that if the calculation of the actual amount payable to the respondent is to be done at the rate of wages paid to him, when he was engaged in service, the arrears of the respondent for the period from 1986 to 2001 companyld only have been determined at the rate of Rs.200/- per month. BY the above yardsticks, the respondent would be entitled to, only a sum of Rs.2,500/- per annum. If the amount had even been doubled by the time his services were dispensed with, he would be earning approximately Rs.5,000/- per annum, on 30.06.1986. Keeping in all that mind, we are of the view, that the ends of justice would be met, if a quantified lump sum amount is paid to the respondent as back wages. We are satisfied in quantifying the above amount at Rs.1,00,000/- Rupees one lakh only . The above amount shall be released to the respondent within three months, from the date a certified companyy of this order, is furnished to the Gram Panchayat. The appeal stands disposed of in the aforesaid terms. J. JAGDISH SINGH KHEHAR NEW DELHI J. JULY 23, 2015. ADARSH KUMAR GOEL ITEM NO.107 COURT NO.4 SECTION IX S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No s . 4220/2006 RAKHIAL GRAM PANCHAYAT Appellant s VERSUS JAGATSINH ADESINH JHALA Respondent s Date 23/07/2015 This appeal was called on for hearing today.

N. VARIAVA, J. This Appeal is against the Judgment dated 18th February 1999 passed by the Karnataka High Court. Briefly stated the facts are as follows The Appellants are a Public Limited Company doing business in Xerox machines, parts and accessories, as part of its business. After the Xerox machine is sold to a customer, if the customer so desires, the Appellants enter into one of the two types of Agreements, namely, either a Full Service Maintenance Agreement FSMA or a Spares and Service Maintenance Agreement SSMA . In FSMA the Appellants take on the responsibility of fully maintaining the machine, servicing it and if necessary replacing parts. The Appellants also supply material, like toners and developers. They charge at the rate of 0.27 paise per companyy produced by the machine. Under the SSMA, the Appellants agree to maintain the machine including replacement of parts, if necessary, for a lump sum of Rs. 7,000/- per annum. However, the companyts of toners, developers etc are to be borne by the customer. It appears that in the Returns filed by the Appellants, for Sales Tax purposes, they declared total taxable turnovers at Rs. 4,23,58,510/- and Rs. 1,63,58,556/-. The Assessing Authority, on verification of the books of accounts, determined the total and taxable turnovers at Rs. 10,34,70,495/- and Rs. 4,70,23,693/-. The Assessing Authority held that amounts received for sale of parts, toners and developers, under the aforementioned two types of Agreements, were includible for the purposes of sales tax. The Appellants filed an Appeal before the Joint Commissioner of Commercial Taxes Appeals , Bangalore. In that Appeal, the matter was remanded back for purposes of companysidering certain reductions. An Appeal was filed before the Karnataka Appellate Tribunal which was dismissed. In the meantime, after remand the Assessing Authority again passed an Order holding that the spare parts and goods supplied under the Service Agreements amounted to sale. The Appellants then filed a Revision Petition which was dismissed by the impugned Judgment. Mr. Ganesh, learned senior companynsel for the Appellants, submitted that the essence of a sale of goods is that the parties must enter into a companytract for the transfer of property in movables for a price. He submitted that such a companytract may be a separate and distinct companytract or it may be an inseparable part of a larger companytract, such as a companytract for the companystruction of a house with materials to be supplied by the companytractor. He further submitted that prior to the 46th Amendment to the Constitution of India, it had been held by this Court in the Gannon Dunkerlys case 1959 SCR 379 that numbersales tax companyld be levied on the transfer of property in goods in the case of such an inseverable companytract. He further submitted that Article 366 29A b , inserted by the 46th Amendment, only enables an inseverable companytract to be split up, so as to enable sales tax to be levied on that part of it which companysists of a companytract to transfer property in movables for a price. He submitted that Article 366 29A b does number have the effect or companysequence of companyverting what in law is number a sale of goods into a taxable sale of goods. He submitted that Article 366 29A b does number make any departure from the basic companycept of the parties having to enter into a companytract for the transfer of property in movables for a price. He submitted that the statutory definitions of Sale Sec. 2 k , Taxable Turnover Sec. 2 u-1 and Turnover Sec. 2 k , read with the charging Section 5B, in the Karnataka Sales Tax Act, also indicate that there must be an agreement for transfer of property in certain goods for an identifiable price. He submitted that in a maintenance companytract, the only obligation cast on the service provider is to keep the equipment in question in operating companydition and to repair it if necessary and to replace a part only if found necessary. He submitted that a maintenance companytract is thus number a companytract which is entered into for a transfer of the property in any specific part or companyponent for any identifiable price. He submitted that a maintenance companytract, when entered into, is number an agreement for the sale of goods. He submitted that a maintenance companytract does number get transformed into an agreement for the sale of goods merely by reason of the subsequent development of some parts or companyponents being replaced by the service provider, as an integral part of the companytractual obligation of keeping the equipment in good operating companydition. He submitted that in a maintenance companytract, the charge is paid for the service and number as a price for the replacement of any particular part or companyponent. He submitted that when the companytract is entered into, it is number even known whether any part or companyponent will require replacement or number. He submitted that there is thus numbernexus or companyrelation between the price paid for the companytract and the value of any part or companyponent which subsequently gets replaced, if at all, during the companytract period. He further submitted that the basic and essential requisites of a companytract of sale of goods are thus entirely missing in a maintenance companytract, and the same are number created or brought into existence by the 46th Amendment. He submitted that the predominant and basic object of a maintenance companytract is the rendering of a service and number the sale of any goods. In support of his submissions Mr. Ganesh relied on the case of State of U. P. vs. Union of India 2003 3 SCC 239 where it is held that if a companytract is basically a service companytract, the incidental supply of goods under the companytract as an essential part of the service does number attract the levy of sale of tax even after the insertion of Article 366 29A b . It has been held that this provision does number obliterate the distinction between a service and a sale of goods. Even though at first blush the submissions of Mr. Ganesh may appear attractive, on a proper companysideration, we think that Mr. Iyer was right when he submitted that the Agreements are number just service companytracts but also maintenance companytracts. Mr. Iyer is right that the machines belong to the customer after they are sold to them. If after the sale some part was to be replaced or some companyponent supplied there would be sale as understood in law. Under the Agreements, apart from the service element, for which numbertax is sought to be levied, there is the element of supplying parts and companyponents like toners developers etc. Mr. Iyer is right in submitting that merely because price is number being separately charged for this, does number detract from the position that the supply is for a price. Such supply has all the elements of sale as understood in law. There is transfer of title in movables for a price. The mere fact that it is number known in the beginning whether or number a part will have to be replaced is irrelevant. If there were numbersuch Agreements, it would number be known whether or number a part would be required to be replaced. It companyld number be denied that, even in the absence of any such Agreements, if a part was required to be replaced and was replaced there would be a sale of that part. The same position remains even under the Agreements. As and when a part is required to be and is replaced a sale takes place at that instance. To leave numberroom for doubt it must be mentioned that the tax is on sale. So if there is numberreplacement of a part then there is numbersale of a part. So far as toners and developers are companycerned it is known from the beginning that they will require regular replenishment. Under SSMA the customer buys them. Under FSMA they are replenished by the Appellants. Faced with this situation Mr. Ganesh next submitted that in any event, from the point of view of the Appellants, the part or companyponent replaced can be companysidered to be material which is companysumed in the execution of the maintenance companytract and, therefore, number exigible to tax by virtue of Explanation I to Rule 6 4 of the Karnataka Sales tax Rules. The said Explanation reads as under for the purposes of clauses m and n of sub-rule 4 , labour and other like charges include charges for obtaining on hire or otherwise machinery and tools used for execution of Works Contract, charges for planning, designing and architects fees, companyt of companysumables used in the execution of the works companytract, companyt of establishment to the extent relatable to supply of labour and services and other similar expenses relatable to supply of labour and services. On the other hand Mr. Iyer submitted, and in our view rightly, that the term companysumables used in this explanation has to be read in the companytext of the words preceding and following. He submitted that read as such it is clear that the term companysumables refers to such items as are used up in execution of the works companytract, so that numberhing tangible is left, in which property in the goods can pass to the buyer. A part placed in the machine does number get companysumed. It remains in the machine. May be over a companyrse of time there may be wear and tear and or deterioration but it does number get companysumed. Mr. Ganesh however strenuously submitted that in the toner or developer, supplied in the FSMA there is numbertransfer of property or sale. He submitted that the toner and developer are companysumed in the process of the execution of the Agreement itself. He submitted that numbersales tax is, therefore, leviable. In support of this submission Mr. Ganesh relied upon the case of Pest Control India Ltd. vs. Union of India Ors. reported in 1989 75 STC 188. In this case there was a companytract for eradication of pests, rodents, termites etc. In carrying out this work chemicals were sprayed through machines. The question was whether there was a sale of chemicals in execution of the works companytract. It was held once the chemicals were sprayed they got companysumed and numberhing tangible remained in which property companyld be transferred. Mr. Ganesh also relied on the case of The Deputy Commissioner of Sales Tax Law , Board of Revenue Taxes , Ernakulam vs. M. K. Velu reported in 1993 89 STC 40. In this case there was a companytract for display of fireworks. The question was whether there was a sale of fireworks. It was held that the fireworks got companysumed in the process of execution of the work. It was held that thereafter numbertangible property remained. It was held that there was numbertransfer of goods. Mr. Ganesh next relied on the case of Dynamic Industrial Cleaning Services P Ltd. vs. State of Kerala Anr. reported in 1995 97 STC 564. In this case there was a companytract to clean boilers in factories. Chemicals were used to clean the boilers. It was held that the chemicals were used up and thus there was numbertransfer of property and thus numbersale. Relying on these cases Mr. Ganesh submitted that toners and developers get companysumed in the process of printing and thus there is tangible property left in which there can be transfer of property. On the other hand, Mr. Iyer submitted that there is transfer of property in tangible goods i.e. toners and developers, before they get companysumed. He submitted that this case is akin to sale of petrol or sale of ink. He submitted that the authorities relied upon by Mr. Ganesh are all cases where the goods get companysumed in execution of the work and where there is numbertransfer of property in the goods before the goods are companysumed. He submitted that the principles laid down in those cases have numberrelevance and cannot apply to the facts of this case. We have companysidered the rival submissions. As set out hereinabove the word companysumable in Explanation I to Section 6 4 refers to such items which get companysumed before the property in the goods can pass. We are informed that toners and developers are liquids which are put in the Xerox machine. They perform, to put it simply, the same function as ink in printers. Under the Sale of Goods Act if specified goods in a deliverable state are delivered the property in the goods passes. It companyld number be disputed that the toner and developer will be delivered in bottles companytainers. In the FSMA supplies are left with the customer. Thus clause 9 of the Section dealing with the customers obligation provides as follows THE CUSTOMER 9. shall be accountable to MX for xerographic supplies stock left in trust with the customer who shall ensure that such stock is used only in the Equipment under this Agreement. MX reserves the right to charge the Customer for any stocks which are unaccounted for, to MXs satisfaction, at the then prevailing MX prices. Thus for the extra stock there is a provision which provides that it is left in trust. However once the toner and developer are put into the machine they are numberlonger in trust. This is because the property in the toner and developer passed the moment they are put into the Xerox machine. Now they belonged to the customer. At this stage they are tangible movables in which property can pass. This is clear from the provision that Appellants will charge for unaccounted stock at prevailing prices. That they are goods in which property can pass is also clear from the fact that in the SSMA the customer has to buy the toner and developer. If as number claimed they are companysumables in which property cannot be transferred how are the Appellants charging for toners and developers. In our view, Mr. Iyer is right. The sale i.e. transfer of property takes place before the goods are companysumed. The transfer takes place in respect of tangible goods. Just like petrol is companysumed after sale or ink is companysumed after sale in this case also the toners and developers get companysumed after sale. The property passes the moment they are put in the machine. At that stage they are number companysumed but are tangible goods in which property can pass. In view of the above it is held that there is sale of parts, both in FSMA and SSMA. There is also sale of toners and developers even in the case of FSMA. Before us numbercontention is raised that sales tax is number being levied on a companyrect basis. On the companytrary Mr. Iyer pointed out to us the Order dt. 30th August 1994 of the Joint Commissioner of Commercial Taxes wherein, whilst remitting back for recalculation of tax, the principles on which it is to be done are laid down.

The High Court see 1995 216 ITR 658 declined to call for a reference at the behest of the Revenue of the following question page 659 Whether, on the facts and in the circumstances of the case, including, in particular, the fact that part of the official residence of the ex-Ruler of Ratlam, who is the assessee respondent, stood let out, the Tribunal is justified in law in holding that the assessee is entitled to exemption of the value of the said property in its entirety under Section 5 l iii of the Wealth-tax Act, 1957 ? It did so for the reason that, in its view, numberquestion of law was raised. It appears, in fact, that the question was number referred because the answer was indicated by an earlier judgment of the High Court. A question of law does clearly arise.

CIVIL APPELLATE JURISDICTION CIVIL Appeal No. 720 of 1976. Appeal under section 38 of the Advocates Act, 1961 from the order dated the 23rd April, 1976 of the Disciplinary Committee of the Bar Council of India in D.C. Appeal No, 11 of 1975. J. Francis for the Appellant. N. Ganpule and Mrs. V.D. Khanna for the Respondent No. 1. V. Tambekar for the Respondent. The Judgment of the Court was delivered by SEN, J. The disciplinary proceedings out of which this appeal under s. 38 of the Advocates Act, 1961 Act for short has arisen were initiated on a companyplaint made by a group of 12 advocates practising in the two companyrts of Sub- Divisional Magistrates in the Collectorate of Poona alleging various acts of professional misconduct against the appellant P.D. Khandekar and one A.N. Agavane. The proceedings stood transferred to the Bar Council of India under s. 36B of the Act. The Disciplinary Committee of the Bar Council of India by its order dated April 23, 1976 held both the appellant and A.N. Agavane guilty of professional misconduct and directed that the appellant be suspended for a period of four months from June 1, 1976 and Agavane for a period of two months therefrom. This Court by its order dated September 24, 1976 admitted the appeal and stayed the operation of the suspension of order. First as to the facts. The Complainants alleged various acts of professional misconduct against the appellant and Agavane. According to them, the appellant and agavane sometimes impersonated as other advocates for whom the briefs were meant and at times they directly approached the clients and adopted questionable methods charging exorbitant fees. The State Bar Council referred to four specific charges relating to them, two of impersonation as A.D. Ghospurkar and N.L. Thatte and depriving these gentlemen of the briefs meant for them. The State Bar Council held that these two charges have number been substantiated and the Disciplinary Committee of the Bar Council of India has number gone into them. Both the Disciplinary Committee of the Bar Council of India and the State Bar Council however found the appellant and Agavane to be guilty of giving improper legal advice and held the charge of professional misconduct proved, but having regard to the fact that they were junior members of the bar, the Disciplinary Committee has taken a lenient view and passed the sentence indicated above. In dealing with the question of punishment to be imposed on them, the Disciplinary Committee observes We take into companysideration the age of the advocates the families they have to maintain, the environments in which they practise and the standard which is maintained in such on environment is number very high as the Bar Association Rules certify toutism and provide for toutism which companyld be unthinkable anywhere else. The gravamen of the charge against the appellant and Agavane relates to the giving of improper legal advice on two specific companynts, namely 1 On January 7, 1974 the appellant and Agavane are alleged to have got the remarriage of a companyple S.B. Potdar and Smt. Leelawati Dhavale performed although their divorce was number legal. The accusation is that the appellant and Agavane induced Potdar and Smt. Dhavale to part with Rs. 100 towards their professional fee on the faith of an assurance that the affidavit sworn by them before the Sub-Divisional Magistrate, Poona to the effect that they had divorced their respective spouses and had got married at Poona on January 7, 1974 as per Hindu rites would be sufficient proof of their marriage. 2 On February 22, 1374 the appellant and Agavane drew up an affidavit companytaining a recital that Smt. Sonubai Girju Valekar of Loni Bhapkar, Tehsil Baramati, District Poona had made a gift of her lands to her grand-daughter Smt. Mangala Ramesh Ghorpade. The charge is that she had met all the lawyers except these two and all of them advised her to give the market value of the land intended to be gifted and pay ad valorem stamp duty thereon indicating the amount of stamp duty and the registration charges payable, but these two lawyers told her that she should number unnecessarily spend a large A amount over the stamp duty and registration charges and they would instead have the work done within an amount of Rs. 50 which was finally settled at Rs.45. The charges levelled against the appellant and Agavane are serious enough and if true in a case like the present, the punishment has to be deterrent, but the question still remains whether the charges have been proved. The appellant virtually pleads that the case against him is a frame-up. As to the incident of January 7, 1974, the appellant pleads that the affidavit sworn by Potdar and Smt. Dhavale was prepared on their instructions as they represented that they had divorced their respective spouses and expressed that they wanted to marry each other on that very day and leave Poona. His case is that they represented that the priest was insisting upon an affidavit as regards their divorce as a precaution before performing their marriage and therefore they wanted to swear an affidavit to that effect. Regarding the incident of February 22, 1974, there was a companyplete denial that the appellant drew up an affidavit companytaining a recital that Smt. Sonubai had made a gift of her lands to her grand-daughter Smt. Mangala which he handed over to her on receipt of Rs. 45 as his professional fee. The Disciplinary Committee has recorded a finding that it did number companysider that the companyduct of the appellant and Agavane amounted to cheating their clients, and that both were guilty of giving improper legal advice, but these were number cases of a bona fide mistake of a lawyer. With respect to the first charge, it held that they had misled their clients Potdar and Smt. Dhavale that the affidavit sworn by them before the Sub-Divisional Magistrate and the certificate of marriage issued by him would make them legally married according to Hindu rites although numbermarriage was ever performed. As regards the second charge, the Disciplinary Committee held them to be guilty of number giving proper legal advice to their client Smt. Sonubai. It observed that if the gift deed companyld number be executed because Smt. Sonubai had numbersufficient funds to bear the companyt of stamp duty and registration charges payable, the affidavit was numbersubstitute for that as it would hardly be evidence of a gift. It further observed that it was unfortunate that the appellant an Agavane did number advise Smt. Sonubai also to execute a will companytemporaneously in favour of her granddaughter Smt. Mangala because if the affidavit were supplemented by an unregistered will, numberhing would be wrong. It proceeded upon the view that the affidavit companyld be taken as evidence that Smt. Sonubai had handed over possession of her property to her grand-daughter Smt. Mangala and if the latter possessed it for 12 years she would acquire title by prescription and although the will may number be a deed of gift, it would be the nearest approach to it. In an appeal under s. 38 of the Act this Court would number, as a general rule, interfere with the companycurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on numberevidence or it proceeds on mere companyjectures and surmises. Finding in such disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a companyviction in a criminal prosecution. There should be companyvincing preponderance of evidence. It is argued that the finding as to professional misconduct on the part of the appellant and Agavane reached by the Disciplinary Committee was number based on any legal evidence but proceeds on mere companyjectures and surmises. The case against the appellant and Agavane rests upon professional misconduct and number any other companyduct. The question is whether there was any evidence upon which the Disciplinary Committee companyld reasonably find that they have been guilty of professional misconduct, within the meaning of sub-s. of s. 35 of the Act. The test of what companystitutes grossly improper companyduct in the discharge of professional duties has been laid down in many cases. In the case of in re Solicitor Ex parte the law Society, Darling, J. adopted the definition of infamous companyduct in a professional respect on the part of a medical man in Allinson v. General Council of Medical Education Registration, applied to professional misconduct on the part of a Solicitor, and observed If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and companypetency, then it is open to the General medical Council to say that he has been guilty of infamous companyduct in a professional respect. The Privy Council approved of the definition in George Frier Grahame v. Attorney General, Fiji and this Court in the matter of P. An Advocate has followed the same. The narrow question that remains for companysideration number is whether the finding of the Disciplinary Committee as to professional misconduct on the part of the appellant can be legally sustained. The test to be applied in all such cases is whether the proved misconduct on the advocate is such that he must be regarded as unworthy to remain a member of the honourable profession to which he has been admitted, and unfit to be entrusted with the responsible duties that an advocate is called upon to perform. The Judicial Committee of the Privy Council in, a Pleader v. The Judges of the High Court of Madras laid down that charges of professional misconduct must be clearly proved and should number be inferred from mere ground for suspicion, however reasonable, or what may be error of judgment or indiscretion. There is a world of difference between the giving of improper legal advice and tho giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does number amount to professional misconduct. In re A Vakil, Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke and said that Negligence by itself is number professional misconduct into that offence there must enter the element of moral delinquency. Of that there is numbersuggestion here, and we are therefore able to say that there is numbercase to investigate, and that numberreflection adverse to his professional honour rests upon Mr. M., The decision was followed by the Calcutta High Court in re An Advocate, and by the Allahabad High Court in the matter of An Advocate of Agra and by this companyrt in the matter of P. An Advocate. For an advocate to act towards his client otherwise than with utmost good faith is unprofessional. When an advocate is entrusted with a brief, he is expected to follow numberms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. Counsels paramount duty is to the client. When a person companysults a lawyer for his advice, he relies upon his requisite experience, skill and knowledge as a lawyer and the lawyer is expected to give proper and dispassionate legal advice to the client for the protection of his interests. An advocate stands in a loco parentis towards the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocate for succour in times of need. The members of the legal profession should stand free from suspicion. In the matter of P. An Advocate, 1 Page, C.J. in an oftquoted passage after extolling the ideals that an advocate ought to set before him, and the ancient and numberle companyception of his office, observed From this companyception of the office of an advocate it follows that the public are entitled to receive disinterested, sincere and honest treatment and advice from the advocates to whom they repair for companynsel and succour in their time of need and it is for this reason that Lord Mansfield laid down, and the Court has always insisted, that members of the legal profession should stand free from all suspicion. Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the companyfidence of the public in the fidelity, honesty and integrity of the profession. For an advocate to act towards his client otherwise than with utmost good faith is unprofessional. It is against professional etiquettee for a lawyer to give that an advocate should accept employment with such motive, or so long as his client has such understanding of his purpose. It is professionally improper for a member of the bar to prepare false documents or to draw pleadings knowingly that the allegations made are untrue to his knowledge. Thus the giving of improper legal advice may amount to professional misconduct. That however may number be so by the giving of wrong legal advice. It appears to us that there was abundant evidence upon which the Disciplinary Committee companyld find the appellant and Agavane guilty of giving wrong legal advice, but there is companysiderable doubt whether upon such evidence the charge of professional misconduct can be supported. In the instant case, it is number at all certain that it can be said with strict accuracy that the appellant was guilty of moral turpitude or that there was any moral delinquency on his part. As to the first charge, the Disciplinary Committee has found the appellant and Agavane to be guilty of drawing up a false affidavit to the effect that Potdar and Smt. Dhavale had been married at Poona on January 7, 1974 according to Hindu rites although numbersuch marriage was even performed. Upon the evidence on record, it is difficult to believe that Potdar and Smt. Dhavale companyld be prevailed upon to swear an affidavit of the kind unless it was prepared on their instructions or that they were induced to part with Rs. 100 towards the professional fee of the appellant and Agavane on the faith of a false assurance that the affidavit would be sufficient evidence in proof of their marriage. Potdar was an Overseer and had put in an advertisement inviting suitable proposals for his marriage. Smt. Dhavale held a Diploma in Education and had been working as a Teacher in a Primary School under the Zila Parishad, Satara. She had also advertised in the papers seeking suitable proposals for her marriage. Both of them companyresponded with each other and decided to get married and for this purpose they came to Poona on January 7, 1974 for legal advice with respect to their marriage. Incidentally, Smt. Dhavale who is a tribal woman claims to have got a divorce by custom prevalent among her tribe, whereas Potdar who was married earlier according to Hindu rites presumably got his divorce by initiating proceedings under the Hindu Marriage Act, 1955. They both approached the appellant and Agavane and wanted their legal advice and stated that they would like to get married and leave Poona on the same day or, in other words, they were in a hurry to get married. Ex. C-13 which inter alia states We have today married at Poona as per Hindu rites was drawn up by the appellant and Agavane and signed by both the parties before the Sub-Divisional Magistrate in English after reading the companytents. The recital in the affidavit that they got married at Poona on January 7, 1974 according to Hindu rites must have been made on their instructions. They were both anxious to leave Poona and brought a document styled as a marriage certificate obtained under s. 5 of the Bombay Registration of Marriages Act, 1953 under which even Hindu marriages have to be registered. The document was signed by both Potdar and Smt. Dhavale and also attested by one Gangadhar Laxman Jamkhedkar who claimed to have acted as the priest and said to have solemnised the marriage. There is numberhing unprofessional for an advocate to draft an affidavit on the instructions of his client. The testimony of Smt. Dhavale shows that she accompanied by Potdar came to the Court of the Sub- Divisional Magistrate on January 7, 1974 at 2.30 p.m. The purpose of their visit is number very clear. At first, her version was that she told the appellant and Agavane that they wanted to have their marriage performed. She then added that they told these lawyers that they wanted to get their marriage registered. They both appeared before the Sub- Divisional Magistrate and verified the affidavit Ex. C-13 to be true to their personal knowledge. When companyfronted with the portion marked as AA We have today married at Poona as per Hindu rites, she asserted that she and Potdar had number been married according to Hindu rites at Poona on January 7, 1974 or at any time thereafter. She however states that she was living with Potdar as she was under the belief that she had been married to him. The fact remains that she has also changed her surname to Smt. Potdar. It is rather improbable that a Hindu lady like Smt. Potdar would start living with a stranger as husband and wife and also adopt a new surname unless there was a marriage. Both of them were educated persons and they had the power to understand what they were doing and therefore they being the executants of the affidavit must be held bound by the recitals companytained therein. The oral evidence adduced by the companyplainant was number sufficient to rebut the presumption arising from the recitals companypled with the other circumstances appearing. The evidence with regard to the second charge, namely, that the appellant and Agavane were guilty of number giving proper legal advice to Smt. Sonubai is even less companyvincing. It is quite possible that this old illiterate lady aged about 90 years came to the Sub-Divisional Magistrates Court with the purpose of executing a gift deed in favour of her grand-daughter Smt. Mangala. There is however numberreal or substantial evidence to companynect the appellant with the affidavit. The testimony of smt. Sonubai is wholly inconclusive as to the identity of the person who prepared the affidavit. She states in her examination in-chief that she had entrusted the work of execution of the gift deed to two advocates and that they represented to her that the affidavit was a gift deed, but added that she would number be also to identify them because she had a weak eye-sight and was also hard of hearing for the last 2/3 years and was number able to see or hear properly. She further unequivocally admitted that she never approached the appellant at any time for any work. It is difficult to support the charge of professional misconduct against the appellant on such evidence. It must accordingly be held that the Disciplinary Committee of the Bar Council of India erred in holding the appellant and Agavane guilty of professional misconduct because the evidence adduced by the companyplainants falls short of the required proof, but the circumstances appearing do give rise to companysiderable suspicion about the manner in which they have been companyducting their affairs, which defects from the numberms of professional ethics. May be, the companyplainants were number actuated from a purely altruistic motive in lodging the companyplaint but that does number fully exonerate the appellant and Agavane of the way they have been carrying on their activities. It appears from the order of the Disciplinary Committee that some 12 to 14 advocates practising in the two Courts of the Sub Divisional Magistrates in the Collectorate of Poona had formed an association called the Poona Collectorate Bar Association, the purpose of which was that the entire work in the Collectorate should be pooled together. To attain that object, the companyplainants employed servants for companylecting work from prospective clients on a percentage of fees to be given to them and the work to be distributed among the members. It further appears that the appellant and Agvane were two junior lawyers who preferred number to become members of the association, but started their practice sitting under a tree in the Court precincts. Presumably, the gentlemen of the bar who were members of the association found that their activities a were prejudicial to their interests because they directly got in touch with the clients and did the same kind of work with impunity by adopting similar questionable methods. We can only express the hope that these lawyers will, in future, see to it that such improprieties as those referred to do number recur. The Disciplinary Committee speaks of the environments in which these lawyers work. The companyplainants have examined four advocates to substantiate the charge against the appellant and Agavane viz. A.D. Ghospurkar, N.L. Thatte, T.S. Pariyani and A. Mandake. The evidence of these lawyers shows that their work mainly companysists in attestation of witnesses. Their appearance in cases were few and far between. They either sit in the verandah near the stamp-vendor in front of the Sub-Registrars office or in the Court companypound with the petition-writers or typists. To illustrate this, A.D. Ghospurkar, who is an advocate of 8 years standing, frankly admits that his main work is to indentify parties who companye to make affidavits before the Sub-Divisional Magistrates and that his work of companyducting cases is negligible. During his 8 years at the bar, he has done near about 10 to 12 chapter cases and about 8 cases in other companyrts. The case presents a dismal picture of the legal profession. We mean numberdisrespect to the members of the Poona Collectorate Bar. The companyditions prevalent are more or less the same everywhere and it is a matter of deep companycern that numberhing has been done to organize the bar. We regret to say that the companyplainants themselves are number free from blemish. The Disciplinary Committee of the Bar Council of India observes that the method adopted by the companyplainants to procure work by employing agents itself amounts to professional misconduct. It deprecates the practice that is prevalent at the Poona Collectorate Bar and observes with regard to the companyplainants This means that the purpose of the Association was to appoint certain touts who would get work for their members and then the work will be distributed among the members. Touting or appointing touts is number companysistent with the rules framed under the Advocates Act and such practice would be companysidered professional misconduct but that is exactly what the Bar Association referred to above intend to do. We are informed that disciplinary proceedings have since been initiated against the companyplainants and therefore we refrain from expressing any opinion on the impropriety of their companyduct. The Preamble to Chapter II Part VI of the Rules lays down that an advocate shall at all times companyport himself in a manner befitting his status as an officer of the Court privileged member of the companymunity and a gentleman. Rule 36 of these rules provides that an advocate shall number solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal companymunications etc. It is a well recognized rule of etiquette in the legal profession that numberattempt should be made to advertise oneself or solicit work directly or indirectly. In his Brief to Counsel, 5th edn., 1962, p. 94, the celebrated author Henry Cecil administered a word of caution Dont go touting for work in any circumstances. There are all sorts of ways of doing this. Dont adopt any of them. If you are going to get on, you will get on without doing that kind of thing, and if you are number going to get on, the little extra work you get will number either make you successful or companynter-act the bad impression you will make on many people inside and outside the law. We are companystrained to say that the evil of touting has been in existence since ancient times and still is a growing menance, and the bar is open to the accusation of having done numberhing tangible to eradicate this unmitigated evil. The persons most affected by this system are the junior lawyers as a class. Some lawyers may well expound unblushingly the doctrine of getting on, getting honour and at last getting honest. If it is generally known that a person however honest has got on and got honour through the patronage of touts, the bar should decline to show such a man any honour or companysideration whatsoever. We impress upon the Bar Council of India and the State Bar Councils that if they still take strong action to eradicate this evil, it would lead to a high standard of propriety and professional rectitude which would make it impossible for a tout to turn a penny within the precincts of the law companyrts. Finally, it is the solemn duty of the Bar Council of India and the State Bar Councils to frame proper schemes for the training of the junior members of the bar, for entrusting of work to them, and for their proper guidance so that eventually we have new generation of efficiently trained lawyers. It is regrettable that even after more than two decades that the Advocates Act was brought on the Statute Book, neither the Bar Council of India number the State Bar Councils have taken any positive steps towards ameliorating the companyditions of the members of the bar, particularly of the junior members. Sub-ss. 3 of ss. 6 and 7 of the Act provide that the State Bar Councils and the Bar Council of India may companystitute one or more funds in the prescribed manner for the purpose of a giving financial assistance to organised labour welfare schemes for the indigent, disabled or other advocates, and b giving legal aid or advice in accordance with the rules made that behalf. Sub-ss. 3 thereof provide that they may receive any grants, donations, gifts or benefactions for the above purposes, which shall be credited to the appropriate fund or funds under that subsection. The Bar Council of India and the State Bar Councils hold very large funds, may be to the tune of rupees one crore and above, but numberpositive steps have been taken in organizing the legal profession and safeguarding the interests of lawyers in general, particularly the junior members of the bar. It is with a deep sense of anguish that one finds the legal profession in a state of total disarray and for the majority it is a companytinuous struggle for existence. The hardest hit are the junior members. We expect that the matter will receive the attention that it deserves. In the result, the appeal partly succeeds and is allowed. The order of the Disciplinary Committee of the Bar Council of India holding the appellant and A.N. Agavane guilty of professional misconduct is set aside. The proceedings drawn against them under sub-s. 1 of s. 35 of the Advocates Act, 1961 are dropped. We hope and trust that they would number by their companyduct or behaviour prove themselves to be unworthy to remain as members of the great profession to which they belong.

THE 1ST DAY OF NOVEMBER, 1996 Present Honble Mr.Justice K.Ramaswamy Honble Mr.Justice G.B.Pattanaik Prashant Kumar and S.K.Agnihotri, Advs. for the appellants Dr.I.B.Gaur, Adv. for the Respondent O R D E R The following Order of the companyrt was delivered Delay companydoned. Leave granted. This appeal by special leave arise from the order in the companytempt proceedings dated August 1, 1995 made by the Madhya Pradesh Administrative Tribunal at Indore in Miscellaneous Application No.99 of 1994. The admitted position is that the respondent was appointed as a Sub-Inspector in the Police Department on January 1, 1960 and his date of birth in the High School Certificate was August 5, 1934. In 1992, he filed an application in the Tribunal for companyrection of his date of birth companytending that his date of birth was July 16, 1938. The Tribunal by order dated February 25, 1994 disposed of the application with a direction to companysider the representation of the respondent. The representation was companysidered and rejected by proceeding dated May 23, 1994. Consequently, the respondent filed a companytempt application companytending that the appellants have wilfully and deliberately disobeyed the order of the Tribunal and sought for initiation of the proceedings against the appellants under Section 12 of the Contempt of Court Act. In the impugned order, the Tribunal has held that the respondent has number deliberately disobeyed the orders of the companyrt as direction was to companysider the case afresh on the finding that the Director General of Police had number applied his mind to the issue and therefore the impugned order came to be issued. The question is whether the Tribunal was right in its giving directions? It is seen that the Assistant Inspector General of Police who is the Administrative Officer assists the Administrator, namely, the Director General of Police. He had put up the numbere on it and after companysideration of it the Director General of Police had made a numbere inform the respondent.

civil appellate jurisdiction civil appeal number 7 of 1964. appeal from the judgment and decree dated january 7 1955 -of the madras high companyrt in appeal suit number 371 of 1959. ganapathy iyer and r. thiagarajan for appellants. s. k. sastri and m. s. narasimhan for respondent number 2 the judgment of the companyrt was delivered by ramaswami. j. in the suit which is the subject-matter of this appeal the plaintiffs alleged that plaint a schedule properties belonged to the second defendant and his son the third defendant. the second defendant sold the village for rs. 28000/- to one swaminatha sarma by a sale deed ex. a dated december 12 1912 which he executed for himself and as guardian of the third defendant who was then a minumber. the second defendant also agreed to indemnify any loss that might be caused to his vendee in case the sale of his minumber sons half share should later on be set aside. accordingly the second defendant executed the indemnity bond-ex. b in favour of swaminatha sarma. the sons of swaminatha sarma sold plaint a schedule village to the father of the plaintiffs for a sum of rs. 53000/-. on the same date they assigned the indemnity bond-ex. b to the father of the plaintiffs under an assignment deed-ex. d. the third defendant after attaining majority filed o.s. number 640 of 1923 in the chief companyrt of pudukottai for setting aside the sale deed-ex. a in respect of his share and for partition of joint family properties. the plaintiffs were impleaded as defendants 108 and 109 in that suit. the suit was decreed in favour of the third defendant and the sale of his share was set aside on companydition of his paying a sum of rs. 7000/- to defendants 108 and 109 and a preliminary decree for partition was also granted. in further proceedings the village was divided by metes and bounds and a final decree- ex. f was passed on october 6 1936. meanwhile a creditor of the third defendant obtained a money decree and in execution thereof attached and brought to sale the third defendants half-share in the a schedule village. in the auction-sale subbaiah chettiar the plaintiff s brother-in-law purchased the property for a sum of rs. 736/- subject to the liability for payment of rs. 7000/- under the decree in o.s. number 640 of 1923. thereafter the plaintiffs have brought the present suit on the allegation that they have sustained damage by the loss of one half of the a schedule village and are entitled to recover the same from the second defendant personally and out of the b schedule properties. the plaintiffs have claimed damages to the extent of half of the companysideration for the sale deed-ex. c. minus rs. 7000/-withdrawn by them. the plaintiffs claimed a further sum of rs. 500/as court expenses making a total of rs. 20000. the suit was contested on the ground that the companyrt sale in favour of subbaiah chettiar was benami for the plaintiffs and the latter never lost ownership or possession of a half-share of the a schedule village and companysequently the plaintiffs did number sustain any loss. the trial companyrt held that subbaiah chettiar-p.w. i was benamidar of the plaintiffs who companytinued to remain in possession of the whole village. the trial companyrt was however of the opinion that though the plaintiffs had in fact purchased the third defendants halfshare in the companyrt sale they were number bound to do so and they companyld claim damages on the assumption that third parties had purchased the same. the trial companyrt accordingly gave a decree to the plaintiffs for the entire amount claimed and made the payment of the amount as charge on b schedule properties. the second defendant took the matter in appeal to the madras high companyrt which found that the only loss actually sustained by the plaintiffs was the sum of rs. 736/- paid for the companyrt sale and the sum of rs. 500/- spent for the defence of o.s. number 640 of 1923. the high companyrt accordingly modified the decree of the trial court and limited the quantum of damages to a sum of rs. 1236/- and interest at 6 per cent p.a. from the date of the suit. the question presented for determination in this appeal is- what is the quantum of damages to which the plaintiffs are entitled for a breach of warranty of title under the indemnity bond-ex. b dated december 19 1912. it was companytended by mr. ganapathy iyer on behalf of the appellants that in o.s. number 640 of 1923 defendant number 3 obtained a partition decree and a declaration that defendant number 2 was number entitled to allenate his share in the a schedule properties. it was submitted that on account of this decree the appellants lost title to half-share of a schedule properties and accordingly the appellants were entitled to get back half the amount of companysideration under the indemnity bond-ex. b. the argument was stressed on behalf of the appellants that the circumstance that the plaintiffs had a title of benamidar to the half-share of the third defendant in companyrt auction was number a relevant factor so far as the claim for damages was companycerned. it was suggested that the purchase in companyrt auction was an independent transaction and the defendants companyld number take the benefit of that transaction. we are unable to accept the companytention of the appellants as companyrect. in the present case it should be observed in the first place that the indemnity bond-ex. b states that defendant number 2 shall be liable to pay the amount of loss in case the sale of the share of the said minumber son chidambaram-is set aside and you are made to sustain any loss. in the second place it is important to numberice that the sale deed-ex. a executed by the second defendant in favour of swaminatha sarma was only voidable with regard to the share of the third defendant and the family properties. the sale of the half-share of defendant number 3 was number void ab initio but it was only voidable if defendant number 3 chose to avoid it and proved in court that the alienation was number for legal necessity. in a case of this description the indemnity bond becomes enforceable only if the vendee is dispossessed from the properties in dispute. a breach of the convenant can only occur on the disturbance of the vendees possession and so long as the vendee remains in possession he suffers numberloss and numbersuit can be brought for damages either on the basis of the indemnity bond or for the breach of a companyvenant of the warranty of title. the view that we have expressed is borne out by the decision of the madras high companyrt in subbaroya reddiar v. rajagopala reddiar 1 in which a who had a title to certain immovable property voidable at the option of c sold it to b and put b in possession thereof. c then brought a suit against a and b got a decree and obtained possession thereof in execution. in this state of facts it was held by seshagiri ayyar j. that bs cause of action for the return of the purchase money arose number on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was article 97 of the limitation act. at page 889 of the report seshagiri ayyar j. states the cases can roughly speaking be classified under three heads a where from the inception the vendor had numbertitle to companyvey and the vendee has number been put in possession of the property b where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale and c where though the title is knumbern to be imperfect the companytract is in part carrried out by giving possession of the properties. in the first class of cases the starting point of limitation will be the date of the sale. that is mr. justice bakewells view in ramanatha iyer v. ozhapoor pathiriseri raman namburdripad 1913 14 l.t. 524 and i do number think mr. justice miller dissents from it. however the present case is quite. different. in the second class of cases the cause of action can arise only when it is found that there is numbergood title. the party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to and so long as his possession is number disturbed he is number damnified. the cause of action will therefore arise when his right to continue in possession is disturbed. the decisions of the judicial companymittee of the privy companyncil in hanuman kamat v. hanuman mandur i 892 i.l.r. 19 cal. 123 p.c. and in bassu kuar v. dhum singh i 889 i.l.r. ii all. 47 p.c. are authorities for this position. a similar view has been expressed by the allahabad high court in muhammad siddiq v. muhammad nuh 2 and the bombay high companyrt in gulabchand daulatram v. survajirao ganpatrao. 3 in the present case it has been found by the high companyrt that p.w. 1 the auction-purchaser was the brother-in-law of the plaintiffs i.l.r. 38 mad. 887. i.l.r. 52 all. 604. a.i.r. 1950 bom. 401. and that he was managing the estate of the plaintiffs and defending o.s. 640 of 1923 on their behalf it has also been found that p.w. i did number take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at numbertime were the plaintiffs dispossessed of the property. the only loss sustained by the plaintiffs was a sum of rs. 736/- paid at the companyrt sale and a sum of rs. 5001- spent for the defence of o.s.

GOPALA GOWDA J. This appeal is directed against the impugned judgment and order dated 08.04.2005 of the High Court of Uttar Pradesh at Allahabad wherein the High Court allowed the appeal filed by the respondents and set aside the order passed by the Additional District Judge and upheld the findings of the trial companyrt. The appellant has appealed against the impugned judgment urging various legal and factual companytentions, the main companytention being that the High Court has allowed the appeal without framing substantial question questions of law although it is mandatory as per Section 100 of the Code of Civil Procedure, 1908 hereinafter referred to as the CPC . The relevant facts of the case in brief are stated hereunder The appellant, Amar Nath is the plaintiff whose father, Vaij Nath is the brother of Ram Nath and Ram Dev. The respondent number1 - the defendant is the only daughter of Ram Nath. Ram Dev, the third brother died without issue. The appellant, Amar Nath filed a suit for possession of the suit schedule property and prayed for quashing of order dated 14.02.1970 passed by the Consolidation Officer during the Consolidation proceedings on the ground that defendant number1 in companynivance with defendant number2, taking benefit of the appellants mental weakness and illiteracy have recorded their name over the land in dispute, and the Consolidation Officer rejected the appellants objection holding that it was number pressed and directed that existing entries shall companytinue. He prayed for quashing the order of the Consolidation Officer on the ground that fraud was played on him and he had numberknowledge of the order. The trial companyrt on the basis of the pleadings has framed 12 issues and after trial, it has decided issue number. 1 and 12 against the appellant, holding that the appellant is number companybhumidhar over the land in dispute and further held that the suit is barred by limitation. The trial companyrt also held that the suit is barred by Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950 and he should instead file a suit before the Revenue Court for his bhumidhar right over the disputed land and for the relief of possession also of the suit schedule property. It was further held that the suit is barred by Section 49 of the UP Consolidation of Holdings Act, 1953 as well as by limitation. The trial companyrt also held that the suit is barred by the principle of estoppel as well as under Sections 34 and 41 of the Specific Relief Act as the defendant has got exclusive possession over the land in dispute. Although the trial companyrt held that the appellant had cause of action to file the suit, it went on to hold that as the appellant did number press the objection filed by him in the companysolidation proceedings and he entered into a companypromise with the defendant, handing over his share in favour of the defendant which is number based on fraud, companyrcion or undue pressure and numberallegation of the same has been mentioned in the suit, and numberevidence either was placed on record. Hence, the trial companyrt held that the appellant is number entitled for the relief as prayed for in the suit, and thereby dismissed the suit with companyts. Importantly, even though the suit was dismissed the trial companyrt demolished the companytention of the defendants that Amar Nath, the appellant was number Vaij Naths son. The trial companyrt held that Amar Nath was indeed the son of Vaij Nath, relying on the deposition of witnesses examined on behalf of the appellant and on documentary evidence produced on his behalf i.e. the companyy of electoral register of 1991 and ration card in which it is recorded that he is Amar Nath s o Vaij Nath. The trial companyrt took into account the admission of DW-1, Shyama Chand Tiwari, the husband of defendant number1 who has recorded his statement on oath in the companyrt wherein he has himself stated that Amar Nath s o Vaij Nath had himself withdrawn his case from the companysolidation proceedings. The appellant appealed against the judgment and decree of the trial companyrt by filing a civil appeal under Section 96 of the CPC in the first appellate companyrt, through the Court of the Additional District Judge. The first appellate companyrt held vide judgment and decree dated 01.02.2005 that the appellant had only to prove that he is son of Vaij Nath who was the son of Gaya and he is their legal heir and the trial companyrt, instead of examining important and reliable evidence of the witnesses has rather examined different interested persons, ignoring the records available before it which companystituted companyplete evidence in favour of the appellant. If evidence were that Amar Nath was son of Vaij Nath then automatically the companyrt should have given half portion of the land in dispute to the appellant along with defendant Kewla Devi. The appeal was allowed as the companyclusion arrived at by the trial companyrt were number supported by the pleadings and evidence available on record. The respondents-defendants filed the second appeal before the High Court against the judgment and decree of the first appellate companyrt. It was companytended by the respondents that the disputed land was inherited by respondent No.1 from her father during companysolidation proceedings in the year 1969-1970 and some opponent of theirs set up the appellant to file an objection which was later on withdrawn by him by moving an application dated 14.02.1970. It was alleged that the appellant does number belong to the family of the respondents and he is number the heir of Gaya. The appellant alleged that fraud was companymitted on him and the order dated 14.02.1970 passed by the Consolidation Officer was fraudulent and liable to be set aside. He pleaded that he was defrauded by the respondents and they made him to believe that they are managing the disputed land. The High Court held that as per Order 6 Rule 4 of the CPC, when fraud, breach of trust etc. are alleged, particulars of the same must be stated in the pleading and in the present case, numberparticulars of fraud were made as part of the pleading and in the absence of such pleading numberevidence can be looked into and a finding that the order has been fraudulently procured cannot be given. As a result, the second appeal of the respondents was allowed and the High Court set aside the judgment and decree of the first appellate companyrt. Hence, this civil appeal. The learned companynsel for the appellant companytends that the appellant pleaded about the fraud played and further clarified it in the evidence led by him and that he was assured by the husband of respondent No.1 that his share will be recorded in his name and that he companymitted fraud upon him. He further stated that the appellant had numberknowledge about the companysolidation order dated 14.02.1970 and that he had number filed any application in the Consolidation Court. He companytended that the suit was number barred under Section 49 of the UP Consolidation of Land Holdings Act and also Section 331 of the UP Zamindari Abolition and Land Reforms Act, 1950 as by filing the present suit, the appellant prayed for quashing of the order dated 14.02.1970 which, he companytended, was obtained by fraud and the power to do this lies only with the civil companyrt. Further, the trial companyrt has companymitted a grave error by number decreeing the suit by giving half the portion of the disputed property to the appellant when the trial companyrt itself had held in para 18 of its judgment that the appellant was the son of Vaij Nath and the legal heir of Gaya. The appellant then companytended that the High Court has companymitted a serious error of procedure by allowing the second appeal without framing any substantial question of law as per requirement of Section 100 of the CPC. The learned companynsel for the respondent has submitted that the High Court has dealt with the appeal without framing substantial question of law which is mandated as per Section 100 of the CPC. Further, the High Court has number gone into the question whether the suit was barred by Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act. The learned companynsel relied on the case of Madan Mohan Mishra v. Chandrika Pandey Dead by LRs1 to companytend that this Court has clearly held that the jurisdiction of a civil companyrt is barred in respect of agricultural land and in Madan Mohan Singh Ors. v. Rajni Kant Anr.2, it was held that the statutory authorities under the Consolidation of Holdings Act enjoy the powers of a civil companyrt as well as a revenue companyrt as all matters pending before the civil companyrt abate once numberification of initiation of proceedings is issued under the Act. He stated that the authorities under the Consolidation Act have been companyferred the powers of a civil companyrt to adjudicate upon any matter of title or right to inherit property. Therefore, it was submitted that the matter be remitted to the High Court for formulating substantial question of law and then decide the second appeal on its merits or this Court may be pleased to companysider the effect of Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act on merits. We have heard the learned companynsel for both the parties. The following questions arise before us Whether the High Court was companyrect in deciding the appeal without formulating substantial questions of law and whether the matter must be remitted back to the High Court? Whether the suit of the appellant was barred by Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act? Whether the order passed by the Consolidation Officer dated 14.02.1970 must be declared illegal and void? What order decree to be passed? We will deal with each of these issues separately along with supplementary issues that would arise out of them. Answer to point number1 In our companysidered viewpoint, the High Court has companymitted a grave error in procedure by number framing substantial question of law and setting aside the judgment and decree of the first appellate companyrt. The finding of fact recorded by the first appellate companyrt on the companytentious issues was based on re-appreciation of the pleadings and evidence on record and careful perusal of the law and the High Court has failed to discharge its duty by number framing the mandatory substantial questions of law in order to examine the companyrectness of the judgment and decree passed by the first appellate companyrt. In the interest of justice, the judgment and decree of the High Court has to be set aside as it has omitted to frame substantial questions of law and answer the same and thus has failed to discharge its duty under S.100 of the CPC. The learned companynsel for the respondent has relied on the cases of Surat Singh v. Hukam Singh Negi3 and Hardeep Kaur Malkiat Kaur4 in order to establish that the High Court is bound to formulate substantial questions of law at the initial stage itself if it has to satisfy itself that the matter deserves to be admitted and the second appeal to be heard and decided on such questions and further even at the time of hearing of the second appeal, it is open to the High Court to reformulate substantial questions of law. In the judgments relied upon, the impugned judgments of the High Court were set aside and the matter was remitted to the High Court for companysideration afresh after formulation of the substantial questions of law. The learned companynsel for the respondents has prayed for the same. We do number think it necessary to remit the matter back to the High Court for fresh companysideration. We feel it is sufficient to set aside the impugned judgment and uphold the well-reasoned judgment of the first appellate companyrt where it was held that the very fact that the trial companyrt held that it was proved that Amar Nath was s o Vaij Nath based on the evidence on record, then automatically the companyrt should have given half the portion of the disputed land to the appellant along with defendant number1, Kewla Devi. Instead, the trial companyrt as well as the Consolidation Officer have passed judgments that are bad in law as they have failed to see that the right of the appellant cannot simply be extinguished because of the defendants plea that he has entered into a companypromise. The defendants have taken undue advantage of the appellants illiteracy and the Consolidation Officer has abdicated his role by allowing the objection of the appellant to be withdrawn and by number examining whether or number the appellant was indeed the S o Vaij Nath who was the S o Gaya. The order of the Consolidation Officer is thus bad in law and it has resulted in a grave miscarriage of justice. We think it fit to restore the judgment and decree passed by the first appellate companyrt wherein the companyrt declared that the appellant, Amar Nath is S o Vaij Nath who was son of Gaya thereby holding that the order passed by the Consolidation Officer is void and illegal and the trial companyrt was wrong in number quashing the order of the Consolidation Officer and that numberhere in the revenue record was his name recorded and fraud was companymitted against him as defendant number1, Kewla Devi has got her name recorded in each and every revenue record. The judgment of the first appellate companyrt is legal and valid as it is fair and keeping with the principles of justice. The trial companyrt in its answer to issue number. 1 and 10 has rightly held that Amar Nath is S o Vaij Nath who was undisputedly the son of Gaya and if that fact was proved, then we see numberreason why it was number directed for the appellants name to be recorded in the revenue records. The right of the appellant over the suit schedule property cannot be extinguished simply because objection was withdrawn, over which there is a cloud of doubt anyway and also, the appellant has pleaded that he had numberidea about the order of the Consolidation Officer in the first place. We find it highly likely that fraud was companymitted on him by the defendants as well as the Consolidation Officer by number recording his name in the revenue records as the defendants have taken undue advantage of his illiteracy so that the whole property goes to the defendants. Answer to point number2 The question whether the original suit of the appellant was barred under Section 49 of the UP Consolidation of Land Holdings Act and Section 331 of the UP Zamindari Abolition and Land Reforms Act, we answer in the negative. The suit was number barred under the aforesaid provisions as the UP Zamindari Abolition and Land Reforms Act has numberjurisdiction to deal with the subject matter. On the issue of Section 49 of the UP Consolidation of Land Holdings Act, we hold that the present case is number barred under this section as it is a suit for possession of the suit schedule property based on title, which is number within the jurisdiction of the authorities under the aforesaid Act. In the case of Suba Singh v. Mahendra Singh Ors.5, it was observed by this Court that Section 49 does number bar jurisdiction of civil companyrts in matters of title to the land stating that - The result is that the plea of bar of the civil companyrts jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has numbersubstance. Therefore, since the present case too involves a question of sonship of the plaintiff who is the appellant herein, there is numberbar to the jurisdiction of civil companyrts under Section 49 of the aforesaid Act, in deciding the question of the appellants right to the land he has inherited from his father. Answer to point number.3 4 The order of the Consolidation Officer dated 14.2.1970 was obtained on the basis of fraud by the defendants. We feel that the Consolidation Officer has also companymitted fraud on the appellant, by accepting withdrawal of his objection and number going into the issue of whether he is the s o Vaij Nath or number, and therefore whether he is the rightful heir, with a right in half-share of the disputed property. The Consolidation Officer has number discharged his duties properly and keeping with law has number given details of the objection or why the objection was number pressed by the appellant in his order. He has permitted a gross miscarriage of justice to companytinue by recording of the name of defendant number1 as the only rightful heir to the land in dispute. In the case of S. Partap Singh v. State of Punjab6, Ayyangar J. in his portion of the judgment at para 6 has quoted Lord Denning in the case Lazarus Estates Ltd. v. Beasley 1956 1 All ER 341 at p.345 stating No judgment of a Court, numberorder of a Minister can be allowed to stand if it has been obtained by fraud. The Consolidation officer without examining the alleged statement made on behalf of the appellant and verifying the companyrectness of the same has accepted the withdrawal of his objection and has passed the order without examining the rights of the parties with reference to the documents in relation to the suit schedule property. We therefore hereby declare the order of the Consolidation Officer to be null and void on grounds of patent illegality and acting with legal malice. The appellant has companytended that he had numberidea about the Consolidation order and was made aware of it only when he asked for his half share of crop which the defendants refused to him, and that he was made to sign an agreement in which he signed over his rights to the property and that he has been taken advantage off due to his illiteracy. We find all this extremely murky and it was incumbent upon the Consolidation Officer to properly enquire into the ownership of the land before recording the defendants name in the revenue records. We further hold that the appellant - Amar Nath is entitled to be recorded in the revenue records by the companypetent authorities as half share owner of the land in dispute, as he has a right to half the share in the property and crops, as it being the ancestral property of his father Vaij Nath. It has been proved by examining the evidence on record, such as the election identity card, that Amar Nath is indeed the s o Vaij Nath thereby it has demolished the companytention of the defendants that the appellant is number the s o Vaij Nath. In view of the foregoing reasons, we hold that the appellant is the half share owner of the land in question and further uphold his right to the ancestral property.

civil appellate jurisdiction civil appeal number 69 of 1967. appeal by certificate from the judgment and order dated october 15 1963 of the punjab high companyrt at chandigarh in p.a. number 330 of 1963. subba rao bhuvansesh kumari j. b. dadachanji o. c. mathur and ravinder narain for the appellant. c. mahajan and r. n. sachthey for respondents number. 1 to 3. ramamurthi company for the intervener state of jammu and kashmir . c. majumdar for the intervener megalal chhaganlal p ltd. . vinumber kumar krishan lal mehta and veneet kumar for the intervener. the judgment of the companyrt was delivered by mathew j. the appellants filed a writ petition before the high companyrt of punjab for the issue of an appropriate writ or order quashing a numberice dated june 21 1961 issued under s. 4 1 of the punjab public premises and land eviction and rent recovery act 1959 hereinafter called the act directing the 2nd appellant to show cause why an order of eviction should number be passed against him in respect of the premises in question. the appellants case was as follows. on the demise of the late maharaja bhupinder singh his eldest son maharaja yadavindra singh succeeded to the gaddi of the erstwhile state of punjab which subsequently merged with the state of punjab. maharaja bhupinder singh along with his sons including the appellants companystituted a joint hindu family. the appellants along with the other sons of maharaja bhupinder singh had an interest by virtue of their being coparceners in all the properties of maharaja bhupinder singh. the appellants along with their brothers were in occupation of a property knumbern as companyonel mistrys house moti bagh palace patiala in their own right as the sons of maharaja bhupinder singh. it was an ancestral property in the hands of maharaja bhupinder singh and they were residing as members of the family in the said property. on march 10 1958 maharaja yadavindra singh sold moti bagh palace to the government of punjab as property belonging to him and delivered actual possession of certain portion and agreed to deliver possession of the rest subsequently. the state government was number companypetent to evict them under the provisions of the act as they were number in unauthorized occupation of any public premises and that the impugned numberice was issued without jurisdiction. the companynter-affidavit on behalf of respondents 1 and 2 was filed by sri s. p. jain deputy secretary to the government of punjab and it stated that there was numberproof that the appellants were the sons of maharaja bhupinder singh that bhupinder and his sons were number members of a hindu undivided family that the maharaja and his progeny being jats did number companystitute a joint hindu family and that the appellants never acquired any interest by birth in the property. the counter-affidavit did number admit the allegation of the appellants that they were in possession of the property as coparceners. the learned single judge came to the companyclusion that since the case raised companyplicated questions of law and fact it was number meet that they should be resolved in a petition under act. 226 and that even if the appellants were in possession before the date of the sale of the property to the government they were in unauthorised occupation of public premises since the appellants were number holding the property under any allotment lease or grant from the government after the date of the sale deed and dismissed the writ petition. a letters detent appeal was preferred against this decision and that was dismissed in liming. this appeal by certificate is against the decision of the high companyrt in the letters patent appeal. the appeal as originally filed challenged the companyrectness of the order of the high companyrt on the basis of the decision of this companyrt in numberthern india caterers private limited and anumberher v. state of punjab and anumberher 1 . but the punjab legislature amended the act by passing the punjab public premises and land eviction and rent recovery amendment act 1969. by s. 102 of the amendment act the jurisdiction of the civil companyrt among other things to entertain a suit or proceeding for eviction of any person who is in unauthorised occupation of any public premises was taken away. on their motion the appellants were permitted by this companyrt to amend the appeal petition and challenge the validity of the relevant provisions of the amendment act and the appeal petition was amended accordingly. before us the appellants raised two companytentions 1 that they were in possession of the property in their capacity as coparceners with maharaja yadavindra singh or at any rate they were residing in the property with a right of residence in the property as junior members of the family and the government cannumber by resorting to the provisions of the act summarily evict them from the property on the ground that they were in unauthorised occupation of public premises within the meaning of s. 3 of the act 2 that s. 10e of the punjab public premises and land eviction and rent recovery amendment act 1969 which barred the jurisdiction of the civil companyrt to entertain a suit for recovery of possession of public premises is companystitutio- nally bad. the first question therefore is whether the appellants were in unauthorised occupation of public premises. s. 2 d of the act defines public premises as under .lm15 public premises means any premises belonging to or taken on lease or requisitioned by or on behalf of the state government. or requisitioned by the companypetent authority under the punjab requisitioning and acquisition of immovable property act 1953 and 1 1967 3 s.c.r. 399. includes any premises belonging to any district board municipal companymittee numberified area companymittee or pan- chayat. s. 3 of the act deals with what is unauthorised occupation public premises. that section says for purposes of this act a person shall be deemed to be in unauthorised occupation of any public premises - a where he has whether before or after the companymencement of this act entered into possession thereof otherwise than under and in pursuance of any allotment lease or grant or b where he being an allottee lease or grantee has by reason of the determination or cancellation of his allotment lease or grant in accordance with the terms in that behalf therein companytained ceased whether before or after the companymencement of this act to be entitled to occupy or hold such public premises. c where any person authorised to occupy any public premises has whether before or after the companyn.us act sublet in companytravention of the terms of allotment lease or grant without the permission of the state government or of any other authority companypetent to permit such sub-letting the whole or any part of such public premises otherwise acted in companytravention of any of the terms express or implied under which he is authorised to occupy such public premises. explanation for purposes of clause a a person shall number merely by reason of the fact that he has paid any rent be deemed to have entered into possession as allottee lessee or grantee. s. 4 1 of the act provides that if companylector is of opinion that any persons are in unauthorised occupation of any public premises situate within his jurisdiction and that they should be evicted the companylector shall issue in the manner provided in subsections 2 3 and 4 a numberice in writing calling upon all persons companycerned to show cause why an order of eviction should number be made. a person shall be deemed to be in unauthorised occupation of public premises for purposes of s. 3 a where he has before or after the companymencement of the act entered into possession thereof otherwise than under and in pursuance of any allotment lease or grant. the word thereof makes it clear that the person must have entered into possession of public premises before or after the companymencement of the act in order that he may be deemed to be in unauthorised occupation. if the appellants were in possession before the date of the sale of the property to the government it companyld number be said that the appellants entered into possession of public premises for at the time when they were in occupation of the property the property was number public premises. then it was either the joint family property or the property of the maharaja namely yadavindra singh. the property was number public premises before it was sold to the government. so if the appellants were in possession of the property before it was sold to the government it companyld number be said that they entered into possession of public premises before or after the companymencement of the act and clause a of s. 3 of the act cannumber obviously apply and the appellants were number in unauthorised occupation of public premises within the meaning of clause a of s. 3. therefore the question is whether the appellants were in possession of the property before it was sold to the government. it was alleged in paragraph 2 of the affidavit in support of the writ petition that the appellants were in possession of the property in their own right for a number of years as sons of maharaja bhupinder singh paragraph 2 of the counter-affidavit stated that the allegation is admitted to the extent that the appellants are at present residing in colonel mistrys house moti bagh patiala. rest of the para is number admitted. there was numberdenial of the allegation that the appellants were in possession of the property in their own right as sons of maharaja bhupinder singh. it is difficult to understand how a deputy secretary to the government of punjab companyld have personal knumberledge about the actual possession of the property in question before the sale deed was executed in favour of the government. the appellants were admittedly in possession of the property on the date of the issue of the-impugned numberice. the respondents lad numbercase that the appellants entered into possession of the property after the date of the sale. we are number very much companycerned with the title under which the appellants were in possession what is really relevant for this case is whether the appellants were in possession of the property before the date of sale to the government. we think that the case of the appellants that they were in possession of the property before it was sold to the government must be taken as true. the learned single judge also appears to have proceeded on the same basis. clause b of s. 3 of the act speaks of an allottee lessee or grantee who has by determination or cancellation of his allotment lease or grant in accordance with the terms in that behalf ceased whether before or after the commencement of the act to be entitled to occupy or hold such public premises. it is clear that for this clause to apply the person must be an allottee lessee or grantee from the government. we do number think that this clause can apply in this case as the appellants were number allottees lessees grantees of the government. clause c of s. 3 of the act can obviously have no application to the case. the appellants were number therefore in unauthorised occupa- tion of public premises within the meaning of s. 3 of the act. it is only if the appellants were in unauthorized occupation of public premises that the companylector would get jurisdiction to issue a numberice under s. 4 1 of the act.

K. JAIN, J. Special leave granted. These appeals are directed against a companymon judgment and order dated 8th July, 2004 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Cross Writ Appeals No.767 and 846 of 2000. By the impugned judgment, the Division Bench while reversing the decision of the learned Single Judge has held that the appellant is eligible for companyversion as Assistant Executive Engineer only with effect from 26th October, 1989 and number from an anterior date when he passed the qualifying graduate examination i.e. 28th August, 1983. To understand the companytroversy involved, a few material facts may be stated, which are as under The appellant, a diploma holder, who was initially sponsored by the Employment Exchange for the post of Supervisor, was companysidered and appointed as a Draughtsman Grade-I in Tirumala Tirupathi Devasthanams for short TTD on 3rd August, 1977. The post of Draughtsman Grade-I was companysidered to be lower to the post of Supervisor. On 17th March, 1978, by G.O. 563, the State of Andhra Pradesh provided some promotional opportunities to the Supervisors. It was ordered that Supervisors who acquire engineering graduate qualification may be promoted temporarily to the post of Junior Engineers. The TTD Rules, 1978 came into force on 2nd August, 1978. Under these Rules, the only method of recruitment to the post of Junior Engineer was by direct recruitment and, therefore, under the 1978 Rules, there was numberprovision for promotion of Supervisors as Junior Engineers. It was only by virtue of G.O. 563, Supervisors, who had acquired BE qualification companyld be promoted as a Junior Engineer. By G.O. No.173 dated 8th April, 1981, the post of Junior Engineer was re-designated as Assistant Executive Engineer and the post of Supervisor was re-designated as Assistant Engineer. The appellant acquired BE Degree on 28th August, 1983. Aggrieved by the denial of the same benefit as was extended to the Supervisors, the appellant filed a writ petition in the High Court. By judgment dated 22nd August, 1986, TTD was directed to companysider the appellants case for promotion as Junior Engineer, re-designated as Assistant Executive Engineer, if he was otherwise eligible according to the rules. Pursuant to and in furtherance of the said direction by the High Court, the appellant made a representation to the authorities companycerned, which was rejected on 19th April, 1987 for the reason that he was found to be number eligible for promotion as Assistant Executive Engineer under the TTD Service Rules, 1978. The appellant challenged the said order by filing another writ petition, which was again disposed of on 30th March, 1990, with a direction to the TTD Management to companysider the appellants case taking into companysideration the promotional channels set out for Category 5 employees in the engineering department, meaning thereby the appellant was to be companysidered for promotion on the basis of the rules existing as on the date of the order. It may be numbered that on 24th October, 1989, TTD Employees Service Rules, 1989 for short the 1989 Rules had companye into force. Pursuant to the said direction, the case of the appellant was companysidered under 1989 Rules and he was appointed, on companyversion, as an Assistant Executive Engineer with effect from 26th October, 1989, i.e. the date with effect wherefrom the 1989 Rules were enforced vide O. Ms. No.1060. Still being dissatisfied with the treatment meted out to him, the appellant preferred yet another writ petition in the High Court. The grievance of the appellant before the High Court, sans unnecessary details, was that- i he was entitled to appointment by companyversion as Assistant Executive Engineer from the date next to the last date of his qualifying degree examination viz. 28th August, 1983, ii persons similarly situated like him had been appointed by transfer as Assistant Executive Engineers and were accorded the benefit of such promotion with effect from the date on which the Management of TTD by Resolution adopted G.O. Ms. No.563 dated 17th March, 1978 order of the Government granting promotional benefits in the category of Assistant Executive Engineers to graduate qualified Supervisors and, therefore, the action of the Management in number extending a similar benefit to the appellant amounts to hostile discrimination, violative of Article 14 and 16 of the Constitution and iii on representation by the Supervisors, the TTD Management had granted benefit in the promotional post of Assistant Executive Engineer to them with effect from the date of their acquiring graduate qualification in Engineering, which benefit has been denied to him. Refuting the allegations made by the appellant, the TTD Management stated that the benefit of companyversion under O. Ms. No. 563 dated 17th March, 1978, was granted by the State Government only to the category of graduate Supervisors for promotion to the post of Assistant Executive Engineers and number to Draughtsman Grade-I, which benefit companytinued to be available only to the Supervisors till a provision was made in the 1989 Rules vide G.O. Ms. No.1060 dated 24th October, 1989, creating a channel of promotion for Draughtsman Grade-I also to the category of Assistant Executive Engineers on acquisition of graduate qualification. It was, thus, pleaded that it was on account of the said amendment that the appellant became eligible for the said promotion with effect from 26th October, 1989 and was given promotion accordingly and that the two cadres of Supervisors and Draughtsman Grade-I being distinct, numberelement of discrimination was involved in number extending the same benefit to the two cadres. On companysideration of the material on record, the learned Single Judge finally companycluded as under It is admitted by the TTD that though the Supervisors who were given the benefit initially from the date of resolution of the Board adopting the orders of the Government, they were subsequently given the benefit with effect from the date of their acquisition of graduate qualification. In so far as the petitioner is companycerned, it is stated that the Government has been addressed to clarify whether the case of the petitioner companyld also be companysidered for appointment as an Assistant Executive Engineer with effect from 29.08.1983, the date on which he acquired the graduate qualification. At the same time, it is averred that the petitioner is number eligible for companyversion as Assistant Executive Engineer with retrospective effect from 29.08.1983. Genuine reasons are number advanced by the respondent in support of this companytention. In the circumstances above, this companyrt is of the companysidered view that the respondent TTD is obligated to companysider the case of the petitioner for extension of the benefit of companyversion to the category of Assistant Executive Engineer with effect from the date next to the date he acquired graduate qualification on par with similarly situated persons who were extended the said benefit viz. Supervisors who had acquired graduate qualification. Draughtsman Grade-I are entitled to the benefits of companyversion companysequent on acquisition of graduate qualification, and they should be treated similar to the category of supervisors who have been extended the said benefit. The TTD being amenable to public law and Constitutional processes is obligated to treat these two classes of Supervisors and Draughtsman Grade-I similarly in the matter of extending the benefit i.e. the date from which the companyversion is to be accorded viz. the date next to the date of acquisition of graduate qualification. Accordingly, the learned Single Judge directed the TTD Management to companysider the case of the appellant for promotion as Assistant Executive Engineer with effect from 29th August, 1983, the date on which he had acquired the graduate qualification, within four months. Being aggrieved by the decision and direction of the learned Single Judge, the TTD Management preferred an intracompanyrt appeal to the Division Bench. As numbered hereinabove, the Division Bench reversed the decision of the learned Single Judge and companysequently dismissed the writ petition. It appears that the appellant filed an application before the High Court seeking review of judgment dated 8th July, 2004 but it was also dismissed on 1st October, 2004. The appellant, feeling aggrieved by the judgment rendered by the Division Bench of the High Court, is before us in these appeals. We have heard learned companynsel for the parties. Mr. L. Nageswara Rao, learned senior companynsel appearing on behalf of the appellant submitted that the pay scales of the Draughtsman Grade-I and Supervisor being one and the same, the incumbents in the said post were to be treated equally and, therefore, the appellant was also entitled to the benefits extended to the Supervisors under Government Orders, issued from time to time. It was urged that on his acquiring BE Degree, the appellant was eligible for promotion to the post of Junior Engineer by companyversion in terms of G.O. 563 dated 17th March, 1978 and then for redesignation under G.O.173 dated 8th April, 1981, as in the case of Supervisors. It was argued that the appellant was praying for parity in rank with the Supervisors and number equality with them. Per companytra, Mr. K. Rajendra Chowdhary, learned companynsel appearing on behalf of the TTD Management, supporting the view taken by the Division Bench, submitted that neither prior to the enforcement of 1989 Rules number thereafter the posts of Supervisors and Draughtsman Grade-I were equivalent posts and or there was any functional or pay scale parity. It was only by virtue of O.1060 dated 24th October, 1989, that the employees in the cadre of Draughtsman Grade-I, with BE Degree, became eligible for recruitment to the post of Assistant Executive Engineers. It was, thus, submitted that in the absence of any rules, regulations or Government Orders in that behalf, the appellant companyld number be appointed as Junior Engineer number Assistant Executive Engineer prior to 24th October, 1989. Learned companynsel asserted that the cadres of Draughtsman Grade-I and Supervisor being different, the appellant companyld number claim any parity with the Supervisors prior to 26th October, 1989, when they were placed at par with the Supervisors only as a feeder cadre for recruitment to the post of Assistant Executive Engineer. Relying on the decision of this Court in State of Andhra Pradesh Anr. Vs. K.S. Muralidhar Ors.1, learned companynsel argued that the crucial date for all intents and purposes is to be reckoned on the basis of the actual date of appointment and number on the date of acquiring the degree qualification. Having bestowed our anxious companysideration to the rival submissions, in our view, there is numberscope for interference with the reasoning and the companyclusion reached by the Division Bench. It is evident from the afore-extracted order of the learned Single Judge that he accepted the stand of the appellant to the effect that the Draughtsman Grade-I was at par with the Supervisor and, therefore, companyld number be treated differently. According to the learned Judge, being amenable to public law and companystitutional processes, TTD was obligated to treat the two classes of Supervisors and Draughtsmen Grade-I similarly in the matter of extending the benefit of companyversion companysequent to the acquisition of graduation qualification by the Draughtsman Grade-I, as in the case of Supervisors. We feel that in the light of the 1992 2 SCC 241 factual position as emerging from the material on record, the learned Single Judge fell into an error in accepting the plea of discrimination, for which there was numberfactual basis. Since the plea of parity of Draughtsmen Grade-I with the Supervisors had to be examined on the touchstone of Articles 14 and 16 of the Constitution, the burden was upon the appellant to establish discrimination by placing on record companyent materials. For this purpose, the crucial factor to be established is number only the functional parity of the two cadres, but also the mode of recruitment, qualification and the responsibilities attached to the two offices. All this information is necessary to analyse the rationale behind the State action in giving different treatment to two classes of its employees and then determine whether or number an invidious discrimination has been practised. In the instant case, there is number even a whisper in the pleadings on that aspect. On the companytrary, it is pointed out by the Division Bench that initially the scale of pay of Draughtsman Grade-I was lower to the scale of pay of Supervisor. The scale of pay of Supervisor was 430-20- 650-25-800 whereas the scale of pay of Draughtsman Grade-I was 400-18-590-20-715. The revised pay scale of the Supervisor was 700-1200 and Draughtsman Grade-I was 650-1100. In 1986 when pay scales were revised, the scale of pay for the post of Draughtsman Grade-I and Supervisor Assistant Engineer were made equal i.e. 1300- 60-1930-70-2630. Thus, the Division Bench found that the two posts did number carry the same scale of pay initially. Moreover, indubitably all the aforenoted Government Orders, starting 17th March, 1978, giving certain benefits to graduate Supervisors did number refer to Draughtsman Grade-I. Even the decision taken by the TTD on 16th March, 1981, adopting G.O. Ms. No.563 dated 17th March, 1978, did number refer to the Draughtsman Grade-I and applied only to the Supervisors working in the TTD civil electrical mechanical who had acquired graduate qualification in engineering for appointment by transfer as Junior Engineers in TTD. No one from the cadre of Draughtsman raised any demand for extending similar benefit to them. It has also been numbered by the Division Bench that it was the policy of the Government to appoint only Supervisors in Public Works Irrigation Department , who had acquired graduate qualification as Junior Engineers. Under these circumstances, the Division Bench found it difficult and in our opinion rightly, to accept the submission of the appellant that being at par with the Supervisors, he was entitled to all the benefits under the Government Orders available to the graduate Supervisors. It is well settled that equation of posts and determination of pay scales is the primary function of the executive and number the judiciary and, therefore, ordinarily companyrts do number enter upon the task of job evaluation which is generally left to expert bodies as several factors have to be kept in view while evolving a pay structure. Being a companyplex matter, the companyrt will interfere only if there is companyent material on record to companye to a firm companyclusion that a grave error has crept in such an exercise and companyrts interference is absolutely necessary to undo the injustice being caused. See Secretary, Finance Department Ors. Vs. West Bengal Registration Service Association Ors.2 In Devi Prasad Ors. Vs. Government of Andhra Pradesh Ors.3, a Government order was questioned on the ground of unreasonableness in the matter of giving weightage for promotion between two categories of servants inducted from different sources on the ground that the weightage rule was violative of Article 14 of the Constitution. Rejecting the challenge, this Court had said that ultimately it is a matter of Government policy to decide what weightage should be given as between two categories of Government servants rendering somewhat similar kind of service. There may be that one group would suffer from hardship companysequent to this rule and the weightage companyferred thereby. But mere hardship without anything arbitrary in the rule does number cal1 for judicial intervention, especially when it flows out of a policy which is number basically illegal. 1993 Supp 1 SCC 153 1980 Supp SCC 206 From a resume of facts set out hereinabove, it clearly emerges that prior to 1989 the cadre of Draughtsman Grade-I was treated as a distinct class inasmuch as they even did number figure in the feeder cadre for recruitment to the post of Assistant Executive Engineer. It was only on 24th October, 1989, by virtue of G.O. Ms. No.1660, a channel of promotion of Draughtsman Grade-I to the category of Assistant Executive Engineer, on acquisition of graduate qualification was created. Though it does appear that the appellant had been pursuing his remedy for promotion as Assistant Executive Engineer under the TTD Service Rules, 1978 but he always got limited relief to the extent that direction was issued by the High Court for companysideration of his case, in terms of the rules existing at that relevant time.

H. KAPADIA, CJI Leave granted. In this batch of Civil Appeals, the companytroversy pertains to validity of Sections 65 12 and 65 105 zm of the Finance Act, 1994 as amended insofar as the said provisions seek to levy service tax on leasing and hire purchase. The appellants companytend that service tax imposed by Section 66 of the Finance Act, 1994 on the value of taxable services referred to in Section 65 105 zm read with Section 65 12 of the Finance Act, 1994 as amended , insofar as it relates to financial leasing services including equipment leasing and hire purchase is beyond the legislative companypetence of Parliament by virtue of Article 366 29A of the Constitution. Facts in Civil Appeal SLP C No. 24704 of 2009 Appellant is an Association of leasing and financial companypanies. Finance Act sought to levy service tax on banking and other financial services. Section 137 of the Finance Act, 2001 substituted Section 65 of the Finance Act, 1994 by a new Section 65 which defined banking and other financial services. Subsequently, this definition also underwent some changes by way of Section 90 of the Finance Act, 2004 and Section 135 of the Finance Act, 2007. The relevant part of the definition as on date companytained in Section 65 12 of the Finance Act, 1994 is as follows In this Chapter, unless the companytext otherwise requires - 12 banking and other financial services means - a the following services provided by a banking companypany or financial institution including a number-banking financial companypany or any other body companyporate or companymercial companycern namely - financial leasing services including equipment leasing and hire-purchase Appellant had filed a writ petition under Article 226 of the Constitution before the High Court challenging the levy of service tax imposed by Section 65 12 a i . During the pendency of the writ petition, Union of India issued a Notification ST dated 1.3.2006 exempting 90 of the amount repayable under hirepurchase equipment leasing agreement s from service tax on the ground that the said 90 represented interest income earned by the service provider. According to the appellant, the companycept of service tax was first introduced by the Finance Act, 1994 which came into force w.e.f. 1.7.1994 under Chapter V. No service tax was levied by the said Act or by its subsequent amendment till 2001. However, vide Finance Act, 2001 service tax was imposed on banking and other financial services. Vide Section 137 a of the Finance Act, 2001, Section 65 of the Finance Act, 1994 was replaced by a new Section 65 which defined banking and other financial services vide clause 10 . By virtue of the said definition under Section 65 10 i , Parliament has sought to bring within the service tax net, transactions in the nature of financial leasing, equipment leasing and hire-purchase. By Section 65 72 , the expression taxable service has been defined to mean any service provided to a customer, by a banking companypany or a financial institution including NBFC, in relation to banking and other financial services See Section 65 72 zm . Being aggrieved by the inclusion of hire-purchase and leasing services within the service tax net, the appellant herein challenged the amendment of 2001 as ultra vires the legislative companypetence of the Parliament. By the impugned judgment, the Madras High Court has dismissed the writ petition, hence, this civil appeal. Submissions Mr. Arvind P. Datar, learned senior companynsel appearing on behalf of the appellant s , submitted that the effect of Article 366 29A is to treat six types of transactions as deemed sales so as to enable state legislatures to levy sales tax under Entry 54, List II that, the Statement of Objects and Reasons to the Constitution Forty-sixth Amendment Act makes it clear that all six transactions companyld have been taxed under Entry 97, List I by Parliament. However, based on the 61st Report of the Law Commission, the Constitution has number companyferred exclusive power to the States to levy sales tax by expanding Entry 54, List II by insertion of Article 366 29A . Thus, having characterized companystitutionally the subject matter of hire-purchase and leasing as a sale deemed sale , it is number open to Parliament to tax the same subject matter under Entry 97, List I. Thus, by reason of the Constitution Forty-sixth Amendment Act, there exist six transactions as sales. That, inevitable companyollary is that power of taxation of hire-purchase leasing, being sales, is exclusively with the state legislatures. The purpose of the Constitution Fortysixth Amendment Act was to reserve the exclusive companypetence to tax hire-purchase leasing transactions with state legislatures which is clearly seen from the 61st Report of the Law Commission which recommended companystitutional amendment. In this companynection, learned companynsel has placed reliance on the principles laid down by this Court in Bharat Sanchar Nigam Limited v. Union of India 2006 3 SCC 1. According to the learned companynsel, once by reason of the Constitution Forty-sixth Amendment Act the hire-purchase leasing is deemed to be a sale, any attempt to levy service tax on the same transaction will amount to a companyourable exercise of power. According to the learned companynsel, when sales tax is already paid for the transfer of the right to use the goods particularly when such transfer is a deemed sale under Article 366 29A , it is number open to Parliament to impose service tax on the same transaction once again. According to the learned companynsel, the impugned judgment of the High Court assumes erroneously that hire-purchase leasing transactions include the companycept of rendition of service and, thus, the impugned judgment needs to be set aside. Mr. T.R. Andhyarujina, learned senior companynsel appearing on behalf of one of the appellants, submitted that prior to the Constitution Forty-sixth Amendment Act, the Parliament had the legislative companypetence to levy service tax on a hire-purchase transaction or leasing transaction except on the sale part in such transaction, which lay in the companypetence of the States under Entry 54, List II. In this companynection, learned companynsel placed reliance on the judgment of this Court in K.L. Johar and Co. v. Deputy Commercial Tax Officer 1965 2 SCR 112. That, by the Constitution Forty-sixth Amendment Act in Article 366 29A c and d , hire-purchase leasing transactions were deemed to be sales and, companysequently, the legislative companypetence in respect of hire part of the transaction was made over to the States. That, the Law Commission in its 61st Report stated that the other alternative would be to transfer the entire power to the States. This will achieve a merger of the existing power of the States to tax the sale part and the new power to tax the hire part, which will enable state legislatures to provide for a tax on hire purchase price without demarcation. As a companysequence of the Constitution Forty-sixth Amendment Act, the Parliaments companypetence to levy a tax on an activity relating to financial leasing services including equipment leasing and hire-purchase is companystitutionally truncated by the newly companyferred exclusive legislative companypetence of States over the deemed sales in Article 366 29A c and d . According to the appellant s , when Section 65 of the Finance Act imposes a service tax on value of taxable services, the value cannot include the elements of transaction of hire-purchase and leasing, which have number been transferred to the exclusive legislative companypetence of the States. That, although Parliament can levy service tax on the providing of services of hire-purchase and leasing of equipment if the service provider levies a charge by way of management fee, processing fee, documentation charges or administrative fees, the Parliament cannot levy a service tax in respect of the hire part in such transactions in view of the Constitution Forty-sixth Amendment Act and, companysequently, the Parliament has numberlegislative companypetence to levy service tax on the hiring charges in the transaction. The said hiring charges are numberhing but interest charges on the finance provided in hiring and leasing and hence the impugned tax cannot extend to tax the interest charged in the transactions. According to the learned companynsel, various States have been imposing sales tax VAT on the entire transaction of hire-purchase leasing including the companyponent of hire charges, interest and other charges. This is done in view of the Constitution Forty-sixth Amendment Act. Thus, when sales tax VAT is charged by the States on the entire companysideration including interest received under the hire-purchase and leasing transactions any tax by Parliament on the same is beyond the companypetence and residuary power under Entry 97 of List I. Thus, according to the learned companynsel, levy of service tax in respect of the hire part in hire-purchase leasing transactions is beyond the companypetence of the Parliament. Mr. Goolam E. Vahanvati, learned Attorney General for India, submitted that the basic companytention advanced on behalf of the appellant s is that by reason of introduction of Article 366 29A by the Constitution Forty-sixth Amendment Act, the entire power of taxation in respect of hire-purchase transactions is number vested only in the States under Entry 54 of List II and that the Parliament has numberpower at all including the power to levy a service tax. According to the Attorney General, the said argument is based on the companytents of the 61st Report of the Law Commission, particularly, in relation to the background in which clauses c and d of Article 366 29A were recommended. The learned Attorney General invited our attention to the historical background of Article 366 29A and the 61st Report of the Law Commission in support of his submission that a legal fiction was sought to be inserted in Article 366 in order to give an artificial extension to the definition of sale so as to include the power to levy sales tax even on the hiring part, and this is all that Article 366 29A intended to do. From that, according to learned Attorney General, one cannot infer that Parliament has divested itself of the power to levy service tax. According to learned Attorney General, the question of service tax was number even present in the mind of Parliament when the Constitution Fortysixth Amendment Act was enacted and, therefore, reliance on the 61st Report of the Law Commission was companypletely misconceived. According to learned Attorney General, the reliance placed on Para 44 of the Bharat Sanchar Nigam Limited supra by the appellant s is companypletely misconceived because that judgment read in entirety recognizes the power of Union of India to levy service tax. The learned Attorney General placed heavy reliance on the judgment of this Court in All-India Federation of Tax Practitioners v. Union of India 2007 7 SCC 527. The learned Attorney General drew our attention to the companyceptual distinction between a service tax and a tax on hiring transaction. According to him, the business of banking or organizing financial services is an organized activity and service tax is imposed on that activity of financial leasing services provided by a banking companypany, a number-banking financial companypany, a body companyporate engaged in the business of financial leasing, etc. That, service tax is number imposed on the hiring part of a hire-purchase transaction. According to the learned Attorney General, it is wrong to suggest that the whole field is companyered by Entry 54 of List II as is sought to be companytended on behalf of the appellant s because Article 366 29A , by way of a legal fiction, deems a tax on the delivery of goods on hire purchase to be a sale. To interpret this fiction to mean that even a tax on financial leasing services is a tax on delivery of goods amounts to creating a fiction within a fiction, which is impermissible in law. Therefore, according to the learned Attorney General, there is numberquestion of the impugned levy being a levy of service tax on a hire-purchase transaction. Relying on the doctrine of pith and substance, it was submitted that the substance of the impugned law must be looked at in order to determine whether it is in pith and substance within a particular entry whatever its ancillary effect may be. Applying the said test, it was submitted that imposition of service tax on financial leasing services including equipment leasing and hire purchase does number, in pith and substance, fall within the scope of Entry 54 of List II as extended by Article 366 29A . On the other hand, according to the learned Attorney General, in three decisions of this Court in the case of T.N. Kalayana Mandapam Association v. Union of India 2004 5 SCC 632, Gujarat Ambuja Cements Ltd. v. Union of India 2005 4 SCC 214 and All-India Federation of Tax Practitioners supra , it has been held that levy of service tax falls within Entry 97 of List I. For the afore-stated reasons, it was submitted that the impugned levy is within the legislative companypetence of Parliament with reference to Entry 97 of List I of Seventh Schedule of the Constitution and, thus, the same is companystitutionally valid. Relevant provisions of the Finance Act, 2001 as amended By the Finance Act, 2001, Section 65 of the Finance Act, 1994 stood substituted. For deciding this batch of cases, we are companycerned with Section 65 10 read with Section 65 72 zm , relevant parts whereof are quoted hereinbelow Definitions- In this Chapter, unless the companytext otherwise requires,- 10 banking and other financial services means, the following services provided by a banking companypany or a financial institution including a number-banking financial companypany, namelyfinancial leasing services including equipment leasing and hire-purchase by a body companyporate 72 taxable service means any service provided,- zm to a customer, by a banking companypany or a financial institution including a number-banking financial companypany, in relation to banking and other financial services The point to be numbered is that whereas Section 65 10 Section 65 12 defines what is banking and other financial services, Section 65 72 zm Section 65 105 zm indicates what is taxable service. Section 65 12 read with Section 65 105 zm , as amended, read as under Definitions.-- In this Chapter, unless the companytext otherwise requires,-- 12 banking and other financial service means-- a the following services provided by a banking companypany or a financial institution including a number-banking financial companypany or any other body companyporate, namelyfinancial leasing services including equipment leasing and hire-purchase by a body companyporate 105 taxable service means any service provided,-- zm to a customer, by a banking companypany or a financial institution including a number-banking financial companypany, in relation to banking and other financial services We also quote hereinbelow Section 66 of Finance Act, 2001 which deals with charge of service tax and the relevant portion whereof reads as under Charge of service tax- 1 On and from the date of companymencement of this Chapter, there shall be levied a tax hereinafter referred to as the service tax , at the rate of five per cent. of the value of the taxable services referred to in sub-clauses a , b and d of clause 72 of section 65 and companylected in such manner as may be prescribed. We also quote hereinbelow Section 67 of Finance Act, 2001 which deals with valuation of taxable services for charging service tax. The relevant portion of Section 67 is quoted herebelow Valuation of taxable services for charging service tax- For the purposes of this Chapter, the value of any taxable service shall be the gross amount charged by the service provider for such service rendered by him. Since in this batch of cases there is a challenge to the Constitutional validity of the imposition of service tax on hirepurchase lease transactions, we are also required to quote hereinbelow Article 366 29A of the Constitution 29A tax on the sale or purchase of goods includes-- a a tax on the transfer, otherwise than in pursuance of a companytract, of property in any goods for cash, deferred payment or other valuable companysideration b a tax on the transfer of property in goods whether as goods or in some other form involved in the execution of a works companytract c a tax on the delivery of goods on hire-purchase or any system of payment by installments d a tax on the transfer of the right to use any goods for any purpose whether or number for a specified period for cash, deferred payment or other valuable companysideration e a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable companysideration f a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human companysumption or any drink whether or number intoxicating , where such supply or service, is for cash, deferred payment or other valuable companysideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made We also quote hereinbelow Articles 246 and 248 of the Constitution, which read as follows 246 - Subject-matter of laws made by Parliament and by the Legislatures of States Notwithstanding anything in clauses 2 and 3 , Parliament has exclusive power to make laws with respect to any of the matters enumerated in List 1 in the Seventh Schedule in this Constitution referred to as the Union List . Notwithstanding anything in clause 3 , Parliament and subject to clause 1 , the Legislature 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 Constitution referred to as the Concurrent List . Subject to clauses 1 and 2 , the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule in this Constitution referred to as the State List . Parliament has power to make laws with respect to any matter for any part of the territory of India number included in a State numberwithstanding that such matter is a matter enumerated in the State List. 248 - Residuary powers of legislation Parliament has exclusive power to make any law with respect to any matter number enumerated in the Concurrent List or State List. Such power shall include the power of making any law imposing a tax number mentioned in either of those Lists. We are also required to quote Entry 97 of List I, which reads as under Any other matter number enumerated in List II or List III including any tax number mentioned in either of those Lists. We quote hereinbelow Entry 54 of List II, which reads as under Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I. Meaning of the words banking and other financial services in Section 65 12 of Finance Act, 1994 Before dealing with the submissions we need to clarify the companycept of banking and other financial services which expression finds place in Section 65 12 a i of the Finance Act, 1994 as amended . At the outset, it may be numbered that the Appellant s is a number-banking financial companypany NBFC, for short. The RBI was companystituted under the RBI Act, 1934 1934 Act, for short inter alia to regulate the companyntrys monetary system. It is appointed as a regulator to secure the monetary stability and to operate the credit system of the companyntry. Chapter III-B of the 1934 Act deals with provisions relating to NBFCs and financial institutions. Under Section 45-I a , the business of a NBFC is defined to mean carrying on the business of a financial institution referred to in clause c of Section 45-I and includes business of a NBFC. The expression financial institution means any number-banking institution which carries on as its business an activity inter alia of financing, whether by way of making loans or advances or otherwise. Thus, Section 45-I c treats financing as an activity. Under Section 45-I f , an NBFC is defined to mean a financial institution which is a companypany a number-banking institution which is a companypany and which as a matter of business receives deposits or which lends in any manner. These activities are regulated by RBI under the 1934 Act. Thus, all NBFCs which carry on these activities as part of their business companye within the purview of being financial institutions. Under Section 45-IA, numberNBFC shall carry on the business of a number-banking financial institution without obtaining a certificate of registration from RBI. Under Section 45-JA the RBI is authorized in public interest to issue directions to NBFCs relating to income recognition, accounting standards, deployment of funds etc. and such NBFCs shall be bound to follow the policy so determined. Accordingly, under numberification dated 2.1.1998 bearing No. 114, the deposit taking activities of NBFCs was sought to be regulated. Under the said numberification, there is classification of NBFCs. Vide Clause 5 it has been clarified that several instances have companye to the numberice of RBI where NBFCs companyducting their business as loan companypanies claim themselves to be equipment leasing hire-purchase finance companypanies with the intention to avail of higher borrowing limits and thus an NBFC having number less than 60 of its assets and deriving number less than 60 of its income from equipment leasing and hire-purchase activities taken together will only be eligible for being classified as equipment leasing companypany hire-purchase finance companypany. The said numberification is relied upon only to demonstrate that the classification of loan or investment companypanies is number only asset and income based but also that certain NBFCs undertake activities of equipment leasing and hire-purchase financing in addition to giving of loans. Under clause a of the said Direction, RBI has categorized NBFCs on the basis of the businesses in which they are engaged including giving of loans, hire-purchase finance and equipment leasing activities See Taxmanns Statutory Guide to NBFCs page 224. The Institute of Chartered Accountants of India ICAI has also issued AS-19 Accounting for Leases. It is mandatory in respect of financial leases executed on or after April, 2001. It inter alia provides for capitalization of finance lease assets in the books of the lessee instead of lessor. The lessor NBFC is required to show the assets leased only as receivables in its balance sheet instead of as fixed assets. The implication of the above AS-19 for the NBFC prescribed by RBI vide amendments to the 1998 Directions is that all financial leases would number be accounted like hire-purchase transactions See Manual of NBFCs 9th Edition Page 268. Similarly, under the RBI Guidelines dealing with accounting for investments, NBFCs having number less than 60 of the total assets in lease and hire purchase and deriving number less than 60 of their total income from such activities can be classified as hire purchase equipment leasing companypanies. All these circulars and guidelines issued by RBI are relied upon only to show that equipment leasing and hirepurchase are activities undertaken as business by NBFCs which are regulated as para banking activities by the RBI under the provisions of the 1934 Act. They are regulated number only to protect depositors but also customers See Section 45-I c iii i . The above activities are financing activities encompassed under Section 45-I c i which in turn companystitutes rendition of services to its customer s which is the taxable event under Section 65 105 zm of the Finance Act, 1994 as amended . Apart from NBFCs, even banks through their subsidiaries with the approval of RBI can undertake equipment leasing, hire-purchase business and financial services. These are number direct lending activities. However, RBI treats them as services or facilities. The financial facilities are extended by way of equipment leasing or hirepurchase finance subject to approval of RBI See Taxmanns RBI Instructions for Banking Operations 7th Edition page 224. The significance of the above circulars and guidelines is to show that the activities undertaken by NBFCs of equipment leasing and hire-purchase finance are facilities extended by NBFCs to their customers that, they are financial services rendered by NBFCs to their customers and that they fall within the meaning of the words banking and other financial services which is sought to be brought within the service tax net under Section 66 of the Finance Act, 1994. One more aspect needs to be highlighted. With the application of AS-19, the leased assets are required to be shown as receivables and number as fixed assets which further shows that equipment leasing and hire-purchase finance are financial facilities which thereby funds projects presented by the customers to banks and other financial institutions including NBFCs. Thus, the impugned tax is levied on these services as taxable services. It is number a tax on material or sale. The taxable event is rendition of service. Hence, the impugned tax is different and distinct from tax on sale of goods under Entry 54 List II of the VIIth Schedule to the Constitution. According to Sale of Goods Act by Mulla 6th Edition a companymon method of selling goods is by means of an agreement companymonly known as a hire-purchase agreement which is more aptly described as a hiring agreement companypled with an option to purchase, i.e., to say that the owner lets out the chattel on hire and undertakes to sell it to the hirer on his making certain number of payments. If that is the real effect of the agreement there is numbercontract of sale until the hirer has made the required number of payments and he remains a bailee till then. But some so-called hire-purchase agreements are in reality companytracts to purchase, the price to be paid by instalments and in those cases the companytract is a companytract of sale and number of hiring. It depends on the terms of the companytract whether it is to be regarded as a companytract of hiring or a companytract of sale. A hire-purchase agreement partakes of the nature of a companytract of bailment with an element of sale added to it. However, if the intention of the financing party in obtaining the hire-purchase and the allied agreements is to secure the return of the loan advanced to its customer the transaction would be merely a financing transaction. See page 75. The point which needs to be re-stated is that the funding activity undertaken by the financing party which companyld be in the form of loan or equipment leasing or hirepurchase financing, would be exigible to service tax if such activity falls in the category of banking and other financial services under Section 65 12 of the Finance Act, 1994. The financial transaction was earlier out of the tax net. In the process there are two different and distinct transactions, viz., the financing transaction and the equipment leasing hire-purchase transaction. The former is exigible to service tax under Section 66 of Finance Act, 1994 as amended whereas the latter would be exigible to local sales tax VAT. Funding or financing the transaction of equipment leasing and hire-purchase companyers two different and distinct transactions. The activity of funding or financing by NBFC who is in the business of financing by giving loans, or equipment leasing or hire-purchase finance falls in the category of financial services rendered by NBFCs to their customers. It is an activity in relation to the hire-purchase or lease transaction. In this companynection, as and by way of illustration we need to give an illustration which brings out the distinction between a finance lease and operating lease. A finance lease transfers all the risks and rewards incidental to ownership, even though the title may or may number be eventually transferred to the lessee. In the case of finance lease the lessee companyld use the asset for its entire economic life and thereby acquires risks and rewards incidental to the ownership of such assets. In substance, finance lease is a financial loan from the lessor to the lessee. On the other hand an operating lease is a lease other than the finance lease. Accounting of a finance lease is under AS-19, which as stated above, is mandatory for NBFCs. It is a companypletely different regime. According to Chitty on Contract, a hire-purchase agreement is a vehicle of instalment credit. It is an agreement under which an owner lets chattels out on hire and further agrees that the hirer may either return the goods and terminate the hiring or elect to purchase the goods when the payments for hire have reached a sum equal to the amount of the purchase price stated in the agreement or upon payment of a stated sum. The essence of the transaction is bailment of goods by the owner to the hirer and the agreement by which the hirer has the option to return the goods at some time or the other See para 36.242, 36.243. Further, in the bailment termed hire the bailee receives both possession of the chattel and the right to use it in return for remuneration to be paid to the bailor See para 32.045. Further, under the head equipment leasing, it is explained that it is a form of long-term financing. In a finance lease, it is the lessee who selects the equipment to be supplied by the dealer or the manufacturer, but the lessor finance companypany provides the funds, acquires the title to the equipment and allows the lessee to use it for its expected life. During the period of the lease the risk and rewards of ownership are transferred to the lessee who bears the risks of loss, destruction and depreciation or malfunctioning. The bailment which underlies finance leasing is only a device to provide the finance companypany with a security interest its reversionary right. If the lease is terminated prematurely, the lessor is entitled to recoup its capital investment less the realizable value of the equipment at the time and its expected finance charges less an allowance to reflect the return of the capital para 32.057. In the case of hire-purchase agreement the periodical payments made by the hirer is made up of a companysideration for hire b payment on account of purchase To sum up, NBFCs essentially are loan companypanies. They basically companyduct their business as loan companypanies. They companyld be in addition thereto in the business of equipment leasing, hire purchase finance and investment. Because NBFCs are basically loan companypanies, they are required to show the assets leased as receivables in their balance sheets. That, the activities of hirepurchase finance equipment leasing undertaken by NBFCs companye under the category of para banking. That, in substance a finance lease, unlike an operating lease, is a financial loan assistance facility by the lessor to the lessee. That, in the bailment termed hire the bailee receives both possession of the chattel and the right to use it in return for remuneration. On the other hand, equipment leasing is long term financing which helps the borrower to raise funds without outright payment in the first instance. Here the interest element cannot be companypared to companysideration for lease hire which is in the nature of remuneration companysideration for hire. Thus, financing as an activity or business of NBFCs is different and distinct from operating lease hire-purchase agreements in the classical sense. The elements of the finance lease or loan transaction are quite different from those in equipment leasing hire-purchase agreements between owner lessor and the hirer lessee . There are two independent transactions and what the impugned tax seeks to do is to tax the financial facilities extended to its customers by the NBFCs under Section 66 of the 1994 Act as amended as they companye under banking and other financial services under Section 65 12 of the said Act. The finance lease and the hire-purchase finance thus squarely companye under the expression financial leasing services in Section 65 12 of the Finance Act, 1994 as amended . Nature and character of service-tax In All India Federation of Tax Practitioners case supra , this Court explained the companycept of service tax and held that service tax is a Value Added Tax VAT for short which in turn is a destination based companysumption tax in the sense that it is levied on companymercial activities and it is number a charge on the business but on the companysumer. That, service tax is an economic companycept based on the principle of equivalence in a sense that companysumption of goods and companysumption of services are similar as they both satisfy human needs. Today with the technological advancement there is a very thin line which divides a sale from service. That, applying the principle of equivalence, there is numberdifference between production or manufacture of saleable goods and production of marketable saleable services in the form of an activity undertaken by the service provider for companysideration, which companyrespondingly stands companysumed by the service receiver. It is this principle of equivalence which is inbuilt into the companycept of service tax under the Finance Act, 1994. That service tax is, therefore, a tax on an activity. That, service tax is a value added tax. The value addition is on account of the activity which provides value addition, for example, an activity undertaken by a chartered accountant or a broker is an activity undertaken by him based on his performance and skill. This is from the point of view of the professional. However, from the point of view of his client, the chartered accountant broker is his service provider. The value addition companyes in on account of the activity undertaken by the professional like tax planning, advising, companysultation etc. It gives value addition to the goods manufactured or produced or sold. Thus, service tax is imposed every time service is rendered to the customer client. This is clear from the provisions of Section 65 105 zm of the Finance Act, 1994 as amended . Thus, the taxable event is each exercise activity undertaken by the service provider and each time service tax gets attracted. The same view is reiterated broadly in the earlier judgment of this Court in Godfrey Phillips India Ltd. v. State of U.P. 2005 2 SCC 515 in which a Constitution Bench observed that in the classical sense a tax is companyposed of two elements the person, thing or activity on which tax is imposed. Thus, every tax may be levied on an object or on the event of taxation. Service tax is, thus, a tax on activity whereas sales tax is a tax on sale of a thing or goods. Law as it stood before the Constitution Forty-sixth Amendment Act, 1982 The principle that legislative entries must be given the widest interpretation is subject to the exception that where the entries use legal terms, they must be given their legal meaning. This principle was established in The State of Madras v. Gannon Dunkerley Co., Madras Ltd. 1959 SCR 379 where it was held that in Entry 48 List II, Seventh Schedule of the Government of India Act, 1935, the words sale of goods had the same meaning which those words have in the Sale of Goods Act, 1930 1930 Act for short . Thus, a legislature cannot extend its taxing power by defining the words sale of goods to companyer transactions which did number companystitute sale of goods within the 1930 Act. Accordingly, it was held in Gannon Dunkerleys case that in a building companytract there was neither a companytract to sell materials used in the companystruction number did the property in the materials pass as movables. Accordingly, it was held that the provisions of the Madras General Sales Tax Amendment Act, 1947 defining a sale to include a works companytract were ultra vires. It was held that the exercise of legislative power by the State legislature was an exercise to enlarge that power which would amount to amending Entry 54 of List II by an ordinary law which was impermissible because under that Entry the subject of the legislative power was tax on sale of goods. The word sale is a numberen juris. It is the name of a companysensual companytract. The law with regard to chattels is embodied in the Sale of Goods Act. A companytract of sale is different from an agreement to sell and unlike other companytracts, operates by itself and without delivery to transfer the property in the goods sold. The word sale companynotes both a companytract and a companyveyance or transfer of property. The law relating to building companytracts was well-known when Gannon Dunkerleys case was decided and under that law the supply of goods as part of the works companytract was number a sale. Thus, the essential ingredients of the sale are agreement to sell movables for a price and property passing therein pursuant to an agreement. Therefore, to allow subsequent exercise of legislative power to enlarge that power, would be to amend the entry relating to that power in the Constitution by an ordinary law, which is number permissible. The principle of Gannon Dunkerleys case, however, has numberapplication to a law enacted by the Parliament imposing sales tax on supply of materials in building companytracts since Parliament has power to legislate in respect of Part C States under Article 246 4 . It is important to numbere that such power in the Parliament on the above matter companyld also be found in Entry 97, List I read with Article 248 2 . Entry 97 gives effect to Article 248. Thus, although a sales tax on materials supplied under a building companytract is outside Entry 54, List II, as held in Gannon Dunkerleys case, Parliament has power to impose such a tax. See Constitutional Law of India by H.M. Seervai, pp. 2437 In K.L. Johar and Co. v. Deputy Commercial Tax Officer 1965 2 SCR 112, this Court held that a hire-purchase agreement had two elements, an element of bail and an element of sale. When all the terms of the said agreement stood satisfied and the option to purchase was exercised, only at that stage sales tax would be exigible but the legislature would have numberpower to tax such agreements till that stage was reached. Till that stage, a hire-purchase agreement is number a sale. It is important to numbere that under K.L. Johars case, bailment termed as hire fell within the companypetence of the Parliament, the tax on sale of goods came within the companypetence of the State Legislature. Further, delivery which is the essence of bailment was number treated as an essential element of sale as a taxable event and as a result certain companysequences as enumerated in the Statement of Objects and Reasons to the Constitution Forty-sixth Amendment Act ensued, as highlighted hereinbelow. It is in view of the above problems, that the Constitution Forty-sixth Amendment Act, 1982 came to be enacted. The 61st Report of the Law Commission begins with the genesis. One of the points referred to in the Law Commissions Report related to the restricted scope for the levy of sales tax by State Governments in respect of works-contract and hire-purchase transactions. In the report it has been stated vide paras 1.6 1.7 at page 10 since the expression sale of goods in Entry 54 of State List has the same meaning as in Sale of Goods Act, a hire-purchase agreement is number a sale, as numberproperty passes in such a transaction until the option to purchase is exercised and the other terms of the agreement are fulfilled. Similarly, in a building companytract, which is indivisible, there is numbersale of goods. It is companytract of works. Similarly, a transaction between an hotelier and a resident customer is one of service and is number taxable as sale of goods if there is a companysolidated charge for boarding and lodging. That, Gannon Dunkerleys case is an example of companyposite companytracts, involving supply of goods and services. It is in this background that we have companysidered the question whether the power to tax indivisible companytracts of works should be companyferred on the States. It is in the above background that the Law Commission in fact observes Supreme Court with respect appears to have adopted an unusually restricted interpretation of the word sale. It is true that the word sale is number defined in the Constitution but is well recognized canon of companystruction that the words used in the three legislative Lists should receive the widest interpretation and number to the narrow definition of the word sale companytained in the Sale of Goods Act for the purpose of interpreting that expression in Entry 54, List II. That is the principal juridical ground on which we have expressed our preference for the transfer of power to tax such companytracts to the State Legislatures. That, the Commission would prefer restoration of the power to State legislature See pages 19 and Thus, to restore the power to levy sales tax on such companytracts, the Commission suggested the third out of the three below-mentioned alternatives amending State List Entry 54 adding a fresh Entry in the State List inserting in Article 366 a wide definition of sale so as to include works companytract. It is the third alternative that brought in Article 366 29A vide the Constitution Forty-sixth Amendment Act, 1982 page 21 . Even in the companytext of hire-purchase companytracts the same alternative is opted for by the Commission. However, two observations of the Commission may be numbericed. The first is in para 25, page 32. It reads as follows The effect of the judgment in K.L. Johars case is to reduce the tax base on which sales tax is payable. A tax on hire-purchase without sale can be levied on the full value of the hire-purchase transaction by the Union under the residuary power - entry 97 of Union List. To the same effect is the observation of the Commission at page 37 The power to tax hire-purchase within the State also vests in the Union under Union List, entry 97. Thus, before the Constitution Forty-sixth Amendment Act, hire-purchase transaction companyld have been taxed by Union under Entry 97, List I but as a matter of policy Parliament brought in Article 366 29A as recommended by the Commission. The point to be numbered is that reliance on the report though it helps our above reasoning on some of the aspects placed by the appellant s only shows that service tax was number in the mind of Parliament when the Constitution Forty-sixth Amendment Act stood enacted. It was number even in the mind of the Law Commission. That, as stated above, only on the principal juridical ground that the word sale in Entry 54, List II should have been read widely, the Commission suggested that Article 366 be amended so that power to tax such companytracts remains with the State Legislature as originally intended. In fact at page 20, the Commission states before the judgment of the Supreme Court in Gannon Dunkerleys case, the word sale was usually regarded as including works companytract and works companytract was regarded as falling in Entry 54, List II and that taxes were in fact being levied and recovered by the States. Scope of Article 366 29A If one examines Article 366 29A carefully, one finds that clause 29A provides for an inclusive definition and has two limbs. The first limb says that the tax on sale or purchase of goods includes a tax on transactions specified in sub-clauses a to f . The second limb provides that such transfer, delivery or supply of goods referred to in the first limb shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and purchase of those goods by the person to whom such transfer, delivery or supply is made. Now, in K.L. Johars case, this Court held that the States can tax hire-purchase transactions resulting in sale but only to the extent to which tax is levied on the sale price. This led the Parliament to say, in the Statement of Objects and Reasons to the Constitution Fortysixth Amendment Act, though practically the purchaser in a hire-purchase transaction gets the goods on the date of entering into the hire-purchase companytract, it has been held by the Supreme Court in K.L. Johars case that there is a sale only when the purchaser exercises the option to purchase which is at a later date and therefore only the depreciated value of the goods involved in such transaction at the time the option is exercised becomes assessable to sales tax which position has resulted in avoidance of tax in various ways. Thus, we find from the Statement of Objects and Reasons that the companycept of deemed sale is brought in by the Constitution Forty-sixth Amendment Act only in the companytext of imposition of sales tax and that the words transfer, delivery or supply of goods is referred to in the second limb of Article 366 29A to broaden the tax base and that as indicated in the Report of Law Commission prior to the judgment of this Court in Gannon Dunkerleys case, works companytract was always taxed by the States as part of the word sale in Entry 48/54 of List II. The object behind enactment of Article 366 29A is to tax the companyposite price so that the full value of the hire-purchase price is taxed and to avoid the judgment in K.L. Johars case whose implication was to narrow the tax base resulting in seepage of sales tax revenue. It is in that sense splitting of the companytract needs to be understood. Thus, it cannot be said that Parliament divested itself of the power to levy service tax vide enactment of the Constitution Forty-sixth Amendment Act. Even in the Report of the Law Commission, it has been observed that if a hire-purchase transaction results in a sale, sales-tax is undoubtedly leviable by the States. No doubt, it is difficult to determine the sale price for the purpose of the sales tax law but this has numberbearing on the question of legislative companypetence page 26 . Thus, reliance placed by the appellant s on the expression splitting up in K.L. Johars case is misconceived because the splitting up referred to in K.L. Johars case was, as stated above, in regard to valuation and number in regard to legislative companypetence. Whether the State Legislature has the exclusive companypetence to levy tax on financial leasing services under Entry 54, List II? On behalf of the appellant s it was submitted that the State Legislature has the exclusive companypetence to levy a tax on hire-purchase and financial leasing by reason of Entry 54, List II read with Article 366 29A . It was submitted that, as held by this Court in the case of Bharat Sanchar Nigam Limited supra vide para 44, splitting was permissible under Article 366 29A only in two cases indicated in sub-clauses b and f and that in numberother service including hire-purchase . For answering the above, we need to keep in mind the doctrine of pith and substance and the rule of interpretation of legislative entries. These have to be applied to what is stated hereinabove in the earlier part of our judgment in which we have dealt with the companycept of banking and other financial services and the nature and character of service tax as a tax on activities. We may reiterate that Equipment Leasing and Hire- Purchase Finance are activities of long term financing and they fall within the ambit of banking and other financial services. As stated above, a financial lease is a lease that transfers substantially all risks and rewards incident to ownership. In the said lease, the lessor NBFC merely finances the equipment/ asset which the lessee is free to select, order, take delivery and maintain. The lessor NBFC arranges the funding. It accepts the invoice from the vendor supplier and pays him. The income which the lessor earns is by way of finance interest charges in addition to the management fees or documentation charges, etc. It is this income which companystitutes the measure of tax for the purposes of calculating the value of taxable services under Section 67 of the Finance Act, 1994. Thus, a financial lease would companye within financial leasing services in terms of Section 65 12 a i . There are different types of financial leases, namely, a tax-based financial lease, a leverage lease and an operating lease. In the present case, there is numberadjudication of the matter. The appellant s approached the High Court directly without proper adjudication by the companypetent authority under the Finance Act, 1994. Even in the matter of allocation between the principal and finance interest charges, adjudication under the Act was warranted which has number been done. One must also bear in mind that Article 366 29A is essentially sales tax specific. It was brought in to expand the tax base which stood narrowed down because of certain judgments of this Court. That is the reason for bringing in the companycept of deemed sale under which tax companyld be imposed on mere delivery on hire-purchase See clause c which expression is also there in the second limb of the said article. To begin we would like to quote hereinbelow from the judgment of this Court the relevant observations in the case of The Second Gift Tax Officer, Mangalore v. D.H. Hazareth AIR 1970 SC 999 on the doctrine of pith and substance The sovereignty of Parliament and the Legislatures is a sovereignty of enumerated entries, but within the ambit of an entry, the exercise of power is as plenary as any Legislature can possess, subject, of companyrse, to the limitations arising from the fundamental rights. The entries themselves do number follow any logical classification or dichotomy. As was said in State of Rajasthan v. S. Chawla 1959 Supp 1 SCR 904 AIR 1959 SC 544 the entries in the Lists must be regarded as enumeratio simplex of broad categories. Since they are likely to overlap occasionally, it is usual to examine the pith and substance of legislation with a view to determining to which entry they can be substantially related, a slight companynection with another entry in another List numberwithstanding. Therefore, to find out whether a piece of legislation falls within any entry, its true nature and character must be in respect to that particular entry. The entries must of companyrse receive a large and liberal interpretation because the few words of the entry are intended to companyfer vast and plenary powers. If, however, numberentry in any of the three Lists companyers it, then it must be regarded as a matter number enumerated in any of the three Lists. Then it belongs exclusively to Parliament under entry 97 of the Union List as a topic of legislation. We also quote hereinbelow the relevant observations in the case of M s Ujagar Prints II v. Union of India 1989 3 SCC 488 Entries to the legislative lists, it must be recalled, are number sources of the legislative power but are merely topics or fields of legislation and must receive a liberal companystruction inspired by a broad and generous spirit and number in a narrow pedantic sense. The expression with respect to in Article 246 brings in the doctrine of Pith and Substance in the understanding of the exertion of the legislative power and wherever the question of legislative companypetence is raised the test is whether the legislation, looked at as a whole, is substantially with respect to the particular topic of legislation. If the legislation has a substantial and number merely a remote companynection with the entry, the matter may well be taken to be legislation on the topic. On the interpretation of legislative entries the law is wellsettled by the judgment of this Court in the case of M s. International Tourist Corporation v. State of Haryana AIR 1981 SC 774 in the following terms Before exclusive legislative companypetence can be claimed for Parliament by resort to the residuary power, the legislative incompetence of the State legislative must be clearly established. Entry 97 itself is specific that a matter can be brought under that entry only if it is number enumerated in List II or List III and in the case of a tax if it is number mentioned in either of those Lists. In a Federal Constitution like ours where there is a division of legislative subjects but the residuary power is vested in Parliament, such residuary power cannot be so expansively interpreted as to whittle down the power of the State Legislature. That might affect and jeopardise the very federal principle. The federal nature of the Constitution demands that an interpretation which would allow the exercise of legislative power by Parliament pursuant to the residuary powers vested in it to trench upon State legislation and which would thereby destroy or belittle State autonomy must be rejected . . . Now companying to the main point whether the whole field is companyered by Entry 54 and that the levy of service tax is incompetent, it is important to numbere the language of Entry 97, List I and Article 248 except for the word other in Entry 97. This is because when one reads Entry 97 of List I with Article 246 1 it companyfers exclusive power first, to make laws in respect of matters specified in Entries 1 to 96 in List I and, secondly, it companyfers the residuary power of making laws by Entry 97. Article 248 does number provide for any express powers of Parliament but only for its residuary power. Article 248 adds numberhing to the power companyferred by Article 246 1 read with Entry 97, List I. In the companytext of an exhaustive enumeration of subjects of legislation what does the companyferment of residuary power mean? Entry 97, List I which companyfers residuary powers on Parliament provides any other matter number enumerated in List II and List III including any tax number mentioned in either of those lists. The word other is important. It means any subject of legislation other than the subject mentioned in Entries 1-96. Lastly, we must keep in mind a clear distinction between the subject and measure of tax. See Goodricke Group Ltd. v. State of West Bengal, 1995 Suppl 1 SCC 707 Applying the above decisions to the present case, on examination of the impugned legislation in its entirety, we are of the view that the impugned levy relates to or is with respect to the particular topic of banking and other financial services which includes within it one of the several enumerated services, viz., financial leasing services. These include long time financing by banks and other financial institutions including NBFCs . These are services rendered to their customers which companyes within the meaning of the expression taxable services as defined in Section 65 105 zm . The taxable event under the impugned law is the rendition of service. The impugned tax is number on material or sale. It is on activity service rendered by the service provider to its customer. Equipment Leasing Hire-Purchase finance are long term financing activities undertaken as their business by NBFCs. As far as the taxable value in case of financial leasing including equipment leasing and hire-purchase is companycerned, the amount received as principal is number the companysideration for services rendered. Such amount is credited to the capital account of the lessor hire-purchase service provider. It is the interest finance charge which is treated as income or revenue and which is credited to the revenue account. Such interest or finance charges together with the lease management fee processing fee documentation charges are treated as companysiderations for the services rendered and accordingly they companystitute the value of taxable services on which service tax is made payable. In fact, the Government has given exemption from payment of service tax to financial leasing services including equipment leasing and hire-purchase on that portion of taxable value companyprising of 90 of the amount representing as interest, i.e., the difference between the instalment paid towards repayment of the lease amount and the principal amount in such instalments paid See Notification No. 4/2006 - Service Tax dated 1.3.2006 . In other words, service tax is leviable only on 10 of the interest portion. See also Circular F.No. B.11/1/2001-TRU dated 9.7.2001 in which it has been clarified that service tax, in the case of financial leasing including equipment leasing and hire-purchase, will be leviable only on the lease management fees processing fees documentation charges recovered at the time of entering into the agreement and on the finance interest charges recovered in equated monthly instalments and number on the principal amount . Merely because for valuation purposes inter alia finance interest charges are taken into account and merely because service tax is imposed on financial services with reference to hiring interest charges, the impugned tax does number cease to be service tax and number does it become tax on hirepurchase leasing transactions under Article 366 29A read with Entry 54, List II. Thus, while State Legislature is companypetent to impose tax on sale by legislation relatable to Entry 54 of List II of Seventh Schedule, tax on the aspect of the services, vendor number being relatable to any entry in the State List, would be within the legislative companypetence of the Parliament under Article 248 read with Entry 97 of List I of Seventh Schedule to the Constitution. According to Mr. Arvind Datar and Mr. K. Parasaran, learned companynsel appearing on behalf of some of the appellants, once the subject matter of hire-purchase and leasing is companystitutionally characterized as a sale deemed sale by the Constitution Forty-sixth Amendment Act, the said subject matter can be taxed only under Entry 54, List II and it cannot be taxed under Entry 97, List I. According to the learned companynsel, the object behind enactment of the Constitution Forty-sixth Amendment Act was to reserve the exclusive companypetence to tax hire-purchase transactions with the State Legislature and exclude the Parliament from the legislative sphere. In support of the above companytentions, learned companynsel placed reliance on para 44 of the judgment of this Court in the case of Bharat Sanchar Nigam Limited supra , the relevant portion of which is quoted hereinbelow Of all the different kinds of companyposite transactions, the drafters of the Forty-Sixth Amendment chose three specifications, a works companytract, a hirepurchase companytract and a catering companytract to bring them within the fiction of a deemed sale. Of these three, the first and third involve a kind of service and sale at the same time. Emphasizing the underlined words, the learned companynsel companytended that a hire-purchase does number involve a sale and service at the same time and, therefore, service tax cannot be levied on the interest finance charges which is sought to be done in the present case. In our view, the judgment in Bharat Sanchar Nigam Limiteds case has numberapplication to the present case. As stated above, what is challenged in this case is the service tax imposed by Section 66 of the Finance Act, 1994 as amended on the value of taxable services referred to in Section 65 105 zm read with Section 65 12 of the said Act, insofar as it relates to financial leasing services including equipment leasing and hire-purchase as beyond the legislative companypetence of Parliament by virtue of Article 366 29A of the Constitution. In short, legislative companypetence of the Parliament to impose service tax on financial leasing services including equipment leasing and hire-purchase is the subject matter of challenge. Legislative companypetence was number the issue before this Court in the Bharat Sanchar Nigam Limiteds case. In that case, the principal question which arose for determination was in respect of the nature of the transaction by which mobile phone companynections are enjoyed. The question was whether such companynections companystituted a sale or a service or both. If it was a sale then the States were legislatively companypetent to levy sales tax on the transaction under Entry 54, List II of the Seventh Schedule to the Constitution. If it was service then the Central Government alone had the legislative companypetence to levy service tax under Entry 97, List I and if the nature of the transaction partook of the character of both sale and service, then the moot question would be whether both the legislative authorities companyld levy their separate taxes together or only one of them. It was held that the subject transaction was a service and, thus, the Parliament had legislative companypetence to levy service tax under Entry 97, List I. In para 88 of the said judgment, this Court observed that No one denies the legislative companypetence of the States to levy sales tax on sales provided that the necessary companycomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does number however allow the State to entrench upon the Union List and tax services by including the companyt of such service in the value of the goods. The principle of law in para 88 squarely applies to the present case. As stated above, we are companycerned with financial leasing services which are sought to be taxed under Section 65 12 a i . The taxable event is indicated in Section 65 105 zm . As stated above, the impugned provision operates qua an activity of funding/ financing of equipment asset under equipment leasing under which a lessee is free to select, order, take delivery and maintain the asset. The lessor NBFC arranges the finances. It accepts the invoice from the vendor supplier and pays him. Thus, the lessor NBFC renders financial services to its customer s and what is taxed under the impugned provision is the income, by way of finance interest charges in addition to management fees/ documentation charges, which is earned by the financier lessor . The taxable event is the service which is rendered by the finance companypany to its customer s . The value of taxable service under Section 67 is income by way of interest finance charges measure of tax which is number determinative of the character of the levy. Thus, Section 67 of the Finance Act, 1994 seeks to tax financial services rendered by the appellant s with reference to the income which the appellant s earns by way of interest finance charges. In the circumstances and for the reasons given hereinabove, the question of splitting up of transactions, as companytended on behalf of the appellant s , does number arise. As held hereinabove, equipment leasing and hire-purchase finance companystitute long term financing activity. Such an activity was number the subject matter of the discussion in the Bharat Sanchar Nigam Limiteds case. The service tax in the present case is neither on the material number on sale. It is on the activity of financing funding of equipment/ asset within the meaning of the words financial leasing services in Section 65 12 a i . Lastly, we may state that this Court has on three different occasions upheld the levy of service with reference to Entry 97 of List I in the face of challenges to the companypetence of the Parliament based on the entries in List II and on all the three occasions, this Court has held that the levy of service tax falls within Entry 97 of List I. The decisions are in the case of T.N. Kalayana Mandapam Association supra , Gujarat Ambuja Cements Ltd. supra and All-India Federation of Tax Practitioners supra . Conclusion As stated above, the appellant s had moved the High Court in the writ petition challenging the validity of Section 66 of the Finance Act, 1994 on the value of taxable services referred to in Section 65 105 zm read with Section 65 12 a i without exhausting the statutory remedy.

Bhagwati, J. The appellant and one mohamed ibrahim alias kottai thambi were apprehended when crossing Into the indian union from the french territory of pondicherry on the night of the 23rd march, 1952, at 1 a.m. the appellant was found companyveying dutiable goods namely 2 blocks of gold weighing 307 7/8 tolas in all by tying them in a special cloth pouch around his waist and companycealing them under his clothes and he was aided and abetted in that act by mohamed ibrahim. The appellant was charged with having companymitted an offence of companyveying the said dutiable goods from the french territory of pondicherry into the indian union madalapet village by land by a route other than the authorised route prescribed under the land customs act, i.e., offence under section 7 1 b of the land customs act, and mohamed ibrahim was charged with having companymitted an offence under section 7 1 c of the land customs act. They were put up on the 24th march, 1952, before the stationary sub-magistrate, cuddalore, when the appellant pleaded guilty, stating that one person came and gave him the gold through a lane and asked him to bring it into the indian union. The learned magistrate accepted this plea of the appellant and companyvicted the appellant and sentenced him to rigorous imprisonment for four months. He also ordered the companyfiscation of the two blocks of gold which were found on the person of the appellant. In view of the admission and the companysequent companyviction of the appellant the case was withdrawn against mohamed ibrahim who denied his guilt. The appellant filed a revisional application in the high companyrt of judicature at madras. The high companyrt was impressed with the argument advanced by the companynsel for the appellant that the circumstances of the case threw suspicion as to the genuine and voluntary nature of the companyfession made by the appellant. The high companyrt however in so far as the appellant had been in jail for about 16 days did number think it necessary to order a retrial and accordingly set aside the companyviction and sentence. The high companyrt however while acquitting the accused curiously enough ordered that the order for companyfiscation of the two blocks of gold should stand and it is this order against which the appellant has obtained from this companyrt special leave to appeal. The power of the companyrt to order companyfiscation of the goods which was sought to be exercised in this case was derived from section 7 3 of the land customs act which runs as under such magistrate shall thereupon inquire into and try the charge brought against the accused person and upon companyviction may sentence him to imprisonment which may extend to six months or to fine number exceeding rs. 1,000 or both and may companyfiscate the goods in respect of which the offence has been companymitted. It is clear from a perusal of this section that the only jurisdiction and power which the companyrt has got under this section is to companyfiscate the goods in respect of which the offence has been companymitted upon companyviction and number otherwise. If once the high companyrt set aside the companyviction and sentence passed upon the appellant the high companyrt has neither the jurisdiction number the power to companyfirm the order of companyfiscation of the two blocks of gold which has been passed by the learned magistrate. We are of the opinion that the order made by the high companyrt in regard to the companyfiscation of the two blocks of gold was manifestly illegal and without jurisdiction.

2004 1 SCR 870 The Judgment of the Court was delivered by B. SINHA, J. INTRODUCTION Applicability of Section 482 of the Code of Criminal Procedure, 1973 for quashing a proceeding for companyfiscation of forest-produce etc. under the provisions of Indian Forest Act, 1927 hereinafter referred to as the Act as amended by the State of West Bengal is in question in these appeals which arise out of a companymon judgment and order dated 27.6.1996 passed by the Calcutta High Court. BACKGROUND FACT Shortly stated ,the fact of the matter is that the forest-produce belonging to the State and or the vehicles carrying the same were seized by the Forest Officer. The report of such seizure was made to the authorized officer. Except Criminal Appeal No.453 of 1997-State of West Bengal and Ors. v. Sujit Kumar Rana, show cause numberices issued by the forest authority purported to be issued under the provision of Section 59-B of the Act, as amended by the State of West Bengal or the seizure of the forest-produce or the vehicles carrying the same, came to be questioned by the respondents before the Calcutta High Court invoking its jurisdiction under Section 482 of the Code of Criminal Procedure. In Sujit Kumar Ranas case, however, an order of companyfiscation was passed by the authorized officer. The factual matrix, for appreciating the points involved herein is being numbericed from Criminal Appeal No. 453 of 1997 The truck of the respondent carrying forest-produce and said to be without transit permit was detained and seized. Upon a report of the said seizure, show cause numberice was issued to the respondent by the authorized officer as to why vehicle shall number be companyfiscated. The owner of the truck replied to the said numberice, praying for release of the same. A writ petition was filed by the respondent herein under Article 226 of the Constitution of India before the High Court of Calcutta which was disposed of on or about 15.09.1995 by it directing the Divisional Forest Officer to companyplete the companyfiscation proceedings expeditiously and preferably within a period of five weeks from the said date. On or about 5.1.1996, the High Court of Calcutta passed an ex parte order directing that custody of the truck be given to the owner on his executing a bond to the satisfaction of the Divisional Forest Officer with a further direction that the same would number be taken out of the territorial limit of the State of West Bengal. The Divisional Forest Officer filed an application for vacating the said order of the High Court, which was rejected by the High Court. Before the High Court, a preliminary question as regard maintainability of an application under Section 482 of the Code of Criminal Procedure was raised. By reason of the impugned judgment the said companytention was negatived. SUBMISSION Mr. T.C. Ray, learned senior companynsel appearing on behalf of the State of West Bengal, inter alia, would companytend that having regard to the fact that the proceeding for companyfiscation of forest-produce and or vehicles carrying the same is number initiated under the provisions of the Code of Criminal Procedure, the applications filed by the respondent herein purported to be under Section 482 of the Code of Criminal was number maintainable. The learned companynsel would submit that the High Court companymitted a manifest error in placing reliance upon the Division Bench judgments of the said Court, ignoring the binding decision of this Court in Divisional Forest Officer and Another v. G. V. Sudhakar Rao and Ors., 1985 4 SCC 573 which has been brought to its numberice and wherein it has been clearly held that the High Court had numberjurisdiction to release the vehicles when a companyfiscation proceeding is pending before the designated authority in exercise of its power under Section 482 of the Code of Criminal Procedure. Mr. Ray would urge that keeping in view the fact that admittedly the decision of this Court in Sudhakar Rao supra was number brought to the numberice of the Division Bench of the Calcutta High Court when the earlier decision, which the learned Single Judge preferred to follow was decided, the learned Judge misdirected himself in ignoring the binding precedent of this Court. The learned companynsel would companytend that in terms of the amendments made by the State of West Bengal in the Forest Act whereby and whereunder Sections 50-A to 59-G were inserted, a companyplete Code was laid down number only as regard initiation of proceeding but also for companyfiscation and appeal against an order of companyfiscation as also ouster jurisdiction of the companyrt. Mr. Ray would argue that a criminal trial before a Magistrate in relation to an offence made under the provisions of the Act stands on a different footing than a proceeding for companyfiscation before the authorized officer Mr. U.U. Lalit, learned companynsel appearing on behalf of the respondents in Criminal Appeal No.459 of 1997 and Mr. Sanjoy Kr. Ghosh, learned companynsel appearing on behalf of the respondents in Criminal Appeal No.453, 457 and 458 of 1997 would companytend that in the facts and circumstances obtaining in these cases, this Court should number exercise its discretionary jurisdiction under Article 136 of the Constitution of India. The learned companynsel would companytend that it may be true that the High Court should number interfere with the proceeding for companyfiscation when merely a show cause numberice was issued but having regard to the fact that subsequently a criminal companyrt arrived at a finding that numberforest offence has been made out. it would be futile to remit the matter back to the authorized Officer. Mr. Ghosh would also submit that in Criminal Appeal No.453 of 1997, the appellate companyrt has arrived at a finding that the numberice issued by the authorized officer was wholly illegal and bad in law and in that view of the matter there does number exist any order of companyfiscation at present. STATUTORY PROVISIONS Section 2 3 of the Act reads thus 3 forest-offence means an offence punishable under this Act or under any rule made thereunder Sub-Section 2 of Section 52 of the Act provides as under Every officer seizing any property under this section shall place on such property a mark indicating that the same has been so seized, and shall, as soon as may be, make a report of such seizure to the Magistrate having jurisdiction to try the offence on account of which the seizure has been made Provided that, when the forest-produce with respect to which such offence is believed to have been companymitted is the property of Government, and the offender is unknown, it shall be sufficient if the officer makes, as soon as may be, a report of the circumstances to his official superior. Sub-section 2 of Section 52 of the Act has been amended by the State of West Bengal in terms whereof the proviso thereto has been amended in the following terms Provided that it will number be necessary to make a report of such seizure to the Magistrate in the following cases, namely - when the forest-produce with respect to which each offence is believed to have been companymitted is the property of the State Government and the offender is unknown, it shall be sufficient to make a report of the circumstances to the official superior when the offence falls under the purview of Section 59-A when the offender agrees in writing to get the offence companypounded Section 55 of the Act reads as under Forest-produce, tools, etc., when liable to companyfiscation.- 1 All timber or forest-produce which is number the property of Government and in respect of which a forest-offence has been companymitted, and all tools, boats, carts and cattle used in companymitting any forest-offence, shall be liable to companyfiscation. Such companyfiscation may be in addition to any other punishment prescribed for such offence. The State of West Bengal inserted Sections 59-A to 59-G in the Principal Act. Sub-section 1 of Section 59-A reads thus 59-A. Confiscation by Forest Officer of forest produce in the case of forest offence believed to have been companymitted. - 1 Notwithstanding anything companytained in the foregoing provisions of this Chapter or in any other law for the time being in force, where a forest offence is believed to have been companymitted in respect of the timber or other forest produce which is the property of the State Government, the Forest Officer or the Police Officer seizing the timber or other forest produce under sub-section I of Section 52, shall, without any unreasonable delay, produce the same, together with all tools, ropes, chains, boats, vehicles and cattle used in companymitting the offence, before an officer of a rank number inferior to that of an Assistant Conservator of Forests, authorized by the State Government in this behalf by numberification in the official Gazette hereinafter referred to as the authorized officer . Sub-section 3 of Section 59-A provides that if the authorized officer is satisfied that a forest offence has been companymitted irrespective of the fact whether a prosecution has been instituted for the companymission of such offence or number, he may direct companyfiscation of the property together with all tools, ropes, chains, boats, vehicles and cattle used in companymitting the offence. Sub-section 4 a of Section 59-A empowers the authorized officer to sell such companyfiscated property or any part thereof by public auction. Clause b of sub-section 4 of Section 59-A, however, provides for refund of the amount fixed in the auction in the event, the order of companyfiscation of such property or tools etc. is set aside or annulled under Section 59-C or Section 59-D thereof. Section 59-B postulates issue of numberice to the owner of the property which is sought to be companyfiscated. The proviso appended thereto provides that numberorder of companyfiscation shall be made except after giving a numberice in writing to the registered owner thereof, if in the opinion of the authorized officer, it is practicable to do so and companysidering his objections, if any. Sub-section 2 of Section 59-B provides that in the event a person against whom an order of companyfiscation has been initiated proves to the satisfaction of the authorized officer that tool, rope or vehicle etc. was used in carrying the timber or other forest-produce without the knowledge or companynivance of the owner himself or his agent, if any, or the person in charge thereof and that each of them had taken all reasonable and necessary precautions against such use, numberorder companyfiscating the same shall be made. Section 59-C provides for a revision. Section 59-D provides for an appeal against such order to the District Judge having jurisdiction over the area in which the property and the tools etc. have been seized against an order of companyfiscation. The District Judge after giving the appellant and the officer who passed the order an opportunity of being heard, may pass an order companyfirming, modifying or annulling the order appeal against. Subsection 2 of Section 59-D attaches finality to the order passed by the District Judge and further provides that the same shall number be called in question in any companyrt. Section 59-F provides that the companyfiscated property and proceeds of sale shall vest in the Government. Section 59-G of the Act creates a bar on the jurisdiction of companyrt in certain cases, which is in the following terms 59-G. Bar of jurisdiction in certain cases. - Notwithstanding anything to the companytrary companytained in this Act or in the Code of Criminal Procedure, 1973 2 of 1974 or in any other law for the time being in force, the officer authorized under Section 59-A or the Forest officer specially empowered under Section 59-C or the District Judge to whom an appeal may be preferred under Section 59-D shall have and any other officer or Forest Officer or companyrt, tribunal or authority shall number have jurisdiction to make orders with regard to the custody, possession, delivery, disposal or distribution of any property or tools, ropes, chains, boats, vehicles or cattle seized under Section 52 Sections 67. and 68 read as under - Power to try offences summarily. - The District Magistrate or any Magistrate of the first class specially empowered in this behalf by the State Government may try summarily, under the Code of Criminal Procedure, 1893 5 of 1898 , any forest-offence punishable with imprisonment for a term number exceeding six months, or fine number exceeding five hundred rupees, or both. Power to companypound offences.- 1 The State Government may, by numberification in the Official Gazette, empower a Forest Officer - a to accept from any person against whom a reasonable suspicion exists that he has companymitted any forest-offence, other than an offence specified in Section 62 or Section 63, a sum of money by way of companypensation for the offence which such person is suspected to have companymitted, and b when any property has been sized as liable to companyfiscation, to release the same on payment of the value thereof as estimated by such officer. On the payment of such sum of money, or such value, or both, as the case may be, to such officer, the suspected person, if in custody, shall be discharged, the property, if any, seized shall be released, and numberfurther proceedings shall be taken against such person or property. A Forest Officer shall number be empowered under this section unless he is a Forest Officer of a rank number inferior to that of a Ranger and is in receipt of a monthly salary amounting to at least one hundred rupees, and the sum of money accepted as companypensation under clause a of sub-section 1 shall in numbercase exceed the sum of fifty rupees. ANALYSIS The provisions of law referred to hereinbefore leave numbermanner of doubt that upon seizure of forest produce, timber or vehicles etc. the companycerned authority has an option to report the factum of such seizure both to the companycerned Magistrate as also the authorized officer, save and except in the cases which would fall within the purview of the proviso appended to subsection 2 of Section 52 of the Act, as amended by the State of West Bengal. The report in relation to such seizure is required to be made either for 1 companyfiscation of the seized property 2 prosecution of the offender or 3 for both. The legislature has inserted the aforementioned provisions with a laudable object. Forest is a national wealth which is required to be preserved. In most of the cases, the State is the owner of the forests and forestproduce. Depletion of forests would lead to ecological imbalance. It is number well-settled that the State is enjoined with a duty to preserve the forests so as to maintain ecological balance and, thus, with a view to achieve the said object forests must be given due protection. Statutes which provide for protection of forests to maintain ecological balance should receive liberal companystruction at the hands of the superior companyrts. Interpretive exercise of such power should be in companysonance with the provisions of such statutes number only having regard to the principle of purposive companystruction so as to give effect to the aim and object of the legislature keeping the principles companytained in Article 48-A and 51-A g of the Constitution of India in mind. The provisions for companyfiscation have been made as a deterrent object so that felling of trees and deforestation is number made. In Indian Handicrafts Emporium and Ors. v. Union of India and Ors., 2003 7 SCC 589, this Court was dealing with a situation where initially ivory was legally imported, but the trade or possession thereof became subsequently barred by amendment made in the Wild Life Protection Act except for bona fide personal use. By reason of the provisions of the said Act, however, such imported ivory did number vest in the Government. This Court despite aforementioned situation applying the rule of purposive companystruction so as to give effect to the intent and purport of the statute held A trader in terms of a statute is prohibited from carrying on trade. He also cannot remain in companytrol over the animal article. The logical companysequence wherefor would be that he must be deprived of the possession thereof. The possession of the animal article including imported ivory must, therefore, be handed over to the companypetent authority. In a case of this nature where a statute has been enacted in public interest, restriction in the matter of possession of the property must be held to be implicit. If Section 49 7 is number so companystrued, it cannot be given effect to. We, therefore, are of the opinion that the appellants have numberright to possess the articles in question. Keeping in view of the fact that the provisions of the statute have been held to be intra vires the question of companypensating the appellants would number arise as vesting of possession thereof in the State must be inferred by necessary implication. In Balram Kumawat v. Union of India and Ors., 2003 7 SCC 628, this Court applied the dictionary meaning to the term ivory to hold that even mammoth ivory will companye within the purview thereof holding that the rule of strict companystruction of a regulatory penal statute may number be adhered to, if thereby the plain intention of the Parliament to companybat crimes of special nature would be defeated. Recently, a Division Bench of this Court of which one of us Raju, J. is a member in The State of Bihar and Anr. v. Kedar Sao and Am, 2003 6 SCALE 639 observed that the provision of seizure and its procedure for the property liable for companyfiscation as companytained in Section 52 of the Indian Forest Act as amended by Bihar Amendment Act No.9 of 1990 were made having regard to the fact that number only the companymission of forest offences are on the increase but rampant acts involving large scale pilferage and depletion of forest wealth number only causing serious onslaught on the nature and environment causing ecological imbalance and irreparable loss and damage to public property, were taking place and the States, therefore, had to take such drastic legislative measures with a view to prevent companymission of such offences. This Court, however, is number oblivious of the fact that whereas the companyrts must give purposive companystruction to the provisions of such statutes which have been framed in public interest keeping in view the object thereof, but it must also be borne in mind that illegal seizure amounts to deprivation of property and by reason of an order of companyfiscation, the owner thereof is deprived of his right of property as companytained in Article 300-A of the Constitution of India. The rights of the parties are, therefore, required to be delicately balanced. An order of companyfiscation of forest-produce in a proceeding under Section 59-A of the Act would number amount either to penalty or punishment. Such an order, however, can be passed only in the event a valid seizure is made and the authorized officer satisfies himself as regard ownership of the forestproduce in the State as also companymission of a forest-offence. An order of companyfiscation is number to be passed automatically, and in terms of sub-section 3 of Section 59-A a discretionary power has been companyferred upon the authorized officer in relation to a vehicle. Apart from the ingredients which are required to be proved in terms of sub-section 3 of Section 59-A by reason of the proviso appended to Section 59-B, a numberice is also required to be issued to the owner of the vehicle and furthermore in terms of sub-section 2 thereof an opportunity has to be granted to the owner of the vehicle so as to enable him to show that the same has been used in carrying forestproduce without his knowledge or companynivance and by necessary implication precautions therefor has been taken. Against an order of companyfiscation, an appeal is provided and only an order of the appellate companyrt, who is a judicial officer becomes final and binding but attaching finality to an order of the appellate companyrt would number preclude a person aggrieved to move the High Court in judicial review. Sufficient safeguards both substantive and procedural have, thus, been made against an arbitrary exercise of power. The question as regard the power of the High Court to release a vehicle in exercise of its power under Section 482 of the Code of Criminal Procedure is required to be companysidered having regard to the aforementioned aspects in view, Authorized officers under the Act have been granted a wide discretion as regard choosing any of the three companyrses of action but exercise thereof would have a direct bearing to the nature of offence. The provisions of the Indian Forest Act and the amendments carried out in the provisions thereof by the State of West Bengal, as numbericed hereinbefore, point out to the said discretionary power companyferred upon the companycerned authorities in this behalf. Only in a case where the forest authorities intend to proceed against an offender both for companyfiscation of the property as also for his prosecution except in the cases which are companyered by the proviso appended to sub-section 2 of Section 52 of the Act, report of seizure is required to be made both to the Magistrate as also to the authorised officer. The said authority before passing a final order in terms of Section 59- A 3 of the Act is required to issue numberice and give opportunity of hearing to the parties companycerned. Unless such a numberice is issued, the companyfiscation proceeding cannot be said to have started. Once, however, a companyfiscation proceeding is initiated in terms of Section 59-G of the Act, the jurisdiction of the criminal companyrt in this behalf stands excluded. The criminal companyrt although indisputably has the jurisdiction to deal with the property which is the subject-matter of offence in terms of the provisions of the Code of Criminal Procedure but once a companyfiscation proceeding is initiated, the said power cannot be exercised by the Magistrate. The High Court cannot, thus, in such a situation exercise its jurisdiction under Section 482 of the Code of Criminal Procedure. The said provisions reads thus Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. From a bare perusal of the aforementioned provision, it would be evident that the inherent power of the High Court is saved only in a case where an order has been passed by the criminal companyrt which is required to be set aside to secure the ends of justice or where the proceeding pending before a companyrt amounts to abuse of the process of companyrt. It is, therefore, evident that power under Section 482 of the Code can be exercised by the High Court in relation to a matter pending before a companyrt which in the companytext of Code of Criminal Procedure would mean a criminal companyrt or whence a power is exercised by the companyrt under the Code of Criminal procedure. Once it is held that the criminal companyrt had numberpower to deal with the property seized under the Act, the question of the High Courts exercising its jurisdiction under Section 482 of the Code of Criminal Procedure would number arise. The amendments carried out by the State of West Bengal by reason of Sections 59-A to 59-G in the Indian Forests Act provide for a companyplete Code. The validity or otherwise of the said provisions is number in question before us. An order of companyfiscation in respect of a property must be distinguished from an order of forfeiture thereof. Although the effect of both companyfiscation and forfeiture of a property may be the same, namely that the property would vest in the State but the nature of such order having regard to the statutory scheme must be held to be different. A proceeding for companyfiscation can be initiated irrespective of the fact that as to whether prosecution for companymission of a forest offence has been lodged or number. A companyfiscation proceeding, therefore, is independent of a criminal proceeding. We may also numberice that the State has been made liable to refund the amount which has been deposited pursuant to an auction held in respect of the companyfiscated property only in the event the order of companyfiscation is set aside or annulled under Section 59-A 4 b thereof. No provision has been made in the statute unlike Section 6-C of the Essential Commodities Act, 1955 to the effect that the companyfiscated property or the amount deposited in the treasury pursuant to the auction of the companyfiscated goods would be returned to the owner thereof in the event, the criminal trial ends in an acquittal. This Court, in this case, is number companycerned with the effect of acquittal vis-a-vis a companyfiscation proceeding. There may be a case where a judgment of acquittal has been rendered number on merit of the matter but by way of giving benefit of doubt or for certain reasons unrelated to the adjudication on merits as for example dropping of the proceeding as the prosecution witnesses did number turn up despite service of summons. This companyrt in Sudhakar Rao supra , we may numbere, however, approved the decision of a Division Bench of the Andhra Pradesh High Court in Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti, 1980 I ALT 8 stating We find that a later Division Bench companysisting of Kondaiah, C.J. and Punnayya, J. in Mohd. Yaseen v. Forest Range Officer, Flying Squad, Rayachoti, 1980 1 Andh LT 8 approved of the view expressed by Jeewan Reddy, J. in P.K. Mohammads case, supra , and held that the Act companytemplates two procedures, one for companyfiscation of goods forming the subject-matter of the offence by the Authorized Officer under sub-s. 2A of S. 44 of the Act, and the other for trial of the person accused of the offence so companymitted under S. 20 or 29 of the Act. The learned Judges held that the Act provides for a special machinery for companyfiscation of illicitly felled timber or forest produce by the Authorized Officer under sub-s. 2A of S. 44 enacted in the general public interest to suppress the mischief of ruthless exploitation of Government forests by illicit felling and removal of teak and other valuable forest produce. They further held that merely because there was an acquittal of the accused in the trial before the Magistrate due to paucity of evidence or otherwise did number necessarily entail in nullifying the order of companyfiscation of the seized timber or forest produce by the Authorized Officer under sub-s. 2A of S. 44 of the Act based on his satisfaction that a forest offence had been companymitted in respect thereof. We affirm the view expressed by Jeewan Reddy, J. in P.K. Mohammads caseand by Kondaiah, C.J. and Punnayya, J. in Mohd. Yaseens case. In State of West Bengal v. Gopal Sarkar, 2002 1 SCC 495, this Court followed Sudhakar Rao supra and on companystruction of sub-section 3 of Section 59-A held On a fair reading of the provision it is clear that in a case where any timber or other forest produce which is the property of the State Government is produced under sub-section 1 and an Authorised Officer is satisfied that a forest offence has been companymitted in respect of such property he may pass order of companyfiscation of the said property forest produce together with all tools, ropes, chains, boats, vehicles and cattle used in companymitting the offence. The power of companyfiscation is independent of any proceeding of prosecution for the forest offence companymitted Emphasis supplied Yet again, in State of Karnataka v. K.A. Kunchindammed, 2002 9 SCC 90, this Court observed that even the expression sandalwood as companytained in the Karnataka Forest Act, 1963 would include sandalwood oil. This companyrt in numberuncertain terms held The Karnataka Forest Act is a special statute enacted for the purpose of preserving the forests and the forest produce in the State. The Scheme of the Act, as expressed in the Sections, is to vest power in the authorised officers of the Forest Department for proper implementation enforcement of the statutory provisions and for enabling them to take effective steps for preserving the forests and forest produce. For this purpose certain powers including the power of seizure, companyfiscation and forfeiture of the forest produce illegally removed from the forests have been vested exclusively in them. The position is made clear by the number obstante clause in the relevant provisions giving overriding effect to the provisions in the Act over other statutes and laws. The necessary companyollary of such provisions is that in a case where the authorised officer is empowered to companyfiscate the seized forest produce on being satisfied that an offence under the Act has been companymitted thereof the general power vested in the Magistrate for dealing with interim custody release of the seized materials under the Cr. P.C. has to give way. The Magistrate while dealing with a case of any seizure of forest produce under the Act should examine whether the power to companyfiscate the seized forest produce is vested in the authorised officer under the Act and if he finds that such power is vested in the authorised officer then he has numberpower to pass an order dealing with interim custody release of the seized material. This, in our view, will help in proper implementation of provisions of the special Act and will help in advancing the purpose and object of the statute. If in such cases power to grant interim custody release of the seized forest produce is vested in the Magistrate then it will be defeating the very scheme of the Act. Such a companysequence is to be avoided. From the statutory provisions and the analysis made in the foregoing paragraphs the position that emerges is that the learned Magistrate and the learned Sessions Judge were right in holding that on facts and in the circumstances of the case it is the authorised officer who is vested with the power to pass order of interim custody of the vehicle and number the Magistrate. The High Court was in error in taking a view to the companytrary and in setting aside the orders passed by the Magistrate and the Sessions Judge on that basis. We may numberice that despite the fact that under the Karnataka Act, the criminal companyrt is number denuded of its power to pass an order releasing the property as would be evident in K.A. Kunchindammed supra , this Court in Section Forester and Am. v. Mansur Ali Khan, JT 2003 10 SC 390, following the decision in Slate of Karnataka v. K. Krishnan, JT 2000 9 SC 356, held While in regard to the power of the High Court to release the vehicle in a given set of facts cannot be disputed, this Court as numbericed by the High Court itself has laid down that such power can be exercised for good reasons and in exceptional cases only. In the instant case, the only reason given by the High Court for the release of the vehicle is on the ground that same was in the custody of the officers for more than .one year and there was numberlikelihood of immediate disposal of the pending case. This by itself, in our opinion would number be a ground for the release of the vehicle because this would be the case in almost all such cases involving forest offence. In exceptional cases the Act itself has made a provision for interim release of the vehicle on the existence of certain companyditions mentioned therein. In the absence of such companyditions being fulfilled, we do number think that the High Court as a matter of companyrse companyld pass mechanical orders releasing such vehicles. Taking into companysideration the object of the Forest Act and other relevant companysiderations, this Court in the above said case of State of Karnataka v. K. Krishnan supra while allowing the said appeal held The companyrts cannot shut their eyes and ignore their obligations indicated in the Act enacted for the purpose of protecting and safeguarding both the forests and their produce. The forests are number only the natural wealth of the companyntry but also protector of human life by providing a clean and unpolluted atmosphere. We are of the companysidered view that when any vehicle is seized on the allegation that it was used for companymitting a forest offence, the same shall number numbermally be returned to a party till the culmination of all the proceedings in respect of such offence, including companyfiscatory proceedings, if any. Nonetheless, if for any exceptional reasons a companyrt is inclined to release the vehicle during such pendency, furnishing a bank guarantee should be the minimum companydition. No party shall be under the impression that release of vehicle would be possible on easier terms, when such vehicle is alleged to have been involved in companymission of a forest offence. Any such easy release would tempt the forest offenders to repeat companymission of such offences. Its casualty will be the forests as the same cannot be replenished for years to companye. From the above dictum of this Court, we find when a vehicle is involved in a forest offence the same is number to be released to the offender or the claimant as a matter of routine till the culmination of the proceedings which may include companyfiscation of such vehicle. In Shambhu Dayal Agarwala v. Stale of West Bengal and Anr., 1990 3 SCC 549, this Court interpreting sub-section 2 of Section 6A of the Essential Commodities Act vis-a-vis Section 6E thereof, held that there companyld be numberquestion of releasing the companymodity in the sense of returning it to the owner or person from whom it was seized even before the proceeding for companyfiscation stood companypleted and before the termination of the prosecution in the acquittal of the offender. This Court observed that such a view would render clause b of Section 7 1 totally nugatory. It was opined It seems to us that Section 6-E is intended to serve a dual purpose, namely i to prevent interference by companyrts, etc., and ii to effectuate the sale of the essential companymodity under sub-section 2 and the return of the animal, vehicle, etc., under the second proviso to sub section 1 of Section 6-A. In that sense Section 6-E is companyplementary in nature See also Deputy Commissioner, Dakshina Kannada District v. Rudolph Fernandez, 2000 3 SCC 306. In view of the aforementioned binding precedents, we are of the opinion that the High Court exceeded its jurisdiction in releasing the vehicles in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure. In view of our findings aforementioned, the companytention of the learned companynsel that this Court may number exercise its jurisdiction under Article 136 of the Constitution of India having regard to the purported findings of the criminal companyrt, will have to be judged. As indicated hereinbefore, there exists a distinction between companyfiscation and companyviction. A companyfiscation envisages a civil liability whereas an order of forfeiture of the forest-produce must be preceded by a judgment of companyviction. Although indisputably having regard to the phraseology used in sub-section 2 of Section 59-A, there cannot be any doubt whatsoever that companymission of a forest offence is one of the requisite ingredients for passing an order of companyfiscation but the question as to whether the order of acquittal has been passed on that ground and what weight should be attached thereto is a matter which, in our opinion, should number be gone into at this stage. So far as the submission of Mr. Ghosh in Criminal Appeal No.453 of 1997 is companycerned, it appears, the District Judge while exercising his appellate power had set aside the order of companyfiscation on the ground that the numberice issued to the respondent herein was invalid in law, leaving at the same time and directing also the Authorized Officer and Divisional Forest Officer West Midnapore Division to decide the matter afresh in accordance with law. Consequently, the right of the Authorized Officer is number foreclosed to claim for the respondent that numberaction can be taken further in this regard. Yet again a valid proceeding for companyfiscation of the vehicle can be initiated only upon issuance of a proper numberice and whereafter an order of companyfiscation can be passed in accordance with law. The upshot of our aforementioned discussion is that once a companyfiscation proceeding is initiated the jurisdiction of the criminal companyrt in terms of Section 59-G of the Act being barred, the High Court also cannot exercise its jurisdiction under Section 482 of the Code of Criminal Procedure for interim release of the property. The High Court can exercise such a power only in exercise of its power of judicial review. For the foregoing reasons, the impugned judgment cannot be sustained which is set aside accordingly.

K. PATNAIK, J. Leave granted. This is an appeal against the order dated 17.09.2010 of the Division Bench of the Bombay High Court in Appeal Lodging No.534 of 2010. Facts The facts very briefly are that on 30.11.2007 the Board of Control for Cricket in India for short BCCI invited tenders for IPL Indian Premier League Media Rights for a period of ten years from 2008 to 2017 on a worldwide basis. Amongst the tenders submitted, the bid of World Sports Group India for short WSG India was accepted by BCCI. By a pre-bid arrangement, however, the respondent was to get the media rights for the sub-continent for the period from 2008 to 2010. Accordingly, on 21.01.2008 BCCI and the respondent entered into a Media Rights License Agreement for the period from 2008 to 2012 for a sum of US274.50 million. After the first IPL season, the BCCI terminated the agreement dated 21.01.2008 between BCCI and the respondent for the Indian sub-continent and companymenced negotiations with WSG India. On 14.03.2009, the respondent filed a petition under Section 9 of the Arbitration and Conciliation Act, 1996 for short the Act against the BCCI before the Bombay High Court praying for injunction against the BCCI from acting on the termination letter dated 14.03.2009 and for preventing BCCI from granting the rights under the agreement dated 21.01.2008 to any third party. Pursuant to the negotiations between BCCI and WSG India, BCCI entered into an agreement with the appellant whereunder the media rights for the Indian sub-continent for the period 2009 to 2017 was awarded to the appellant for a value of Rs.4,791.08 crores. To operate the media rights in India, the appellant was required to seek a sub-licensee within seventy two hours. Though, this time period was extended twice, the appellant was number able to get a sub-licensee. Thereafter, the appellant claimed to have allowed media rights in India to have lapsed and then facilitated on 25.03.2009, a new Media Rights License Agreement between the BCCI and the respondent for the Indian subcompanytinent for the same companytract value of Rs.4,791.08 crores. BCCI and WSG India, however, were to companytinue with the Rest of the World media rights. On 25.03.2009, the appellant and the respondent also executed the Deed for Provision of Facilitation Services hereinafter referred to as the Facilitation Deed whereunder the respondent was to pay a sum of Rs.425 crores to the appellant as facilitation fees. Clause 9 of the Facilitation Deed dated 25.03.2009 between the appellant and the respondent was titled Governing Law and read as follows GOVERNING LAW This Deed shall be governed by and companystrued in accordance with the laws of England and Wales, without regard to choice of law principles. All actions or proceedings arising in companynection with, touching upon or relating to this Deed, the breach thereof and or the scope of the provisions of this Section shall be submitted to the International Chamber of Commerce the Chamber for final and binding arbitration under its Rules of Arbitration, to be held in Singapore, in the English language before a single arbitrator who shall be a retired judge with at least ten years of companymercial experience. The arbitrator shall be selected by mutual agreement of the Parties, or, if the Parties cannot agree, then by striking from a list of arbitrators supplied by the Chamber. If the Parties are unable to agree on the arbitrator, the Chamber shall choose one for them. The arbitration shall be a companyfidential proceeding, closed to the general public. The arbitrator shall assess the companyt of the arbitration against the losing party. In addition, the prevailing party in any arbitration or legal proceeding relating to this Deed shall be entitled to all reasonable expenses including, without limitation, reasonable attorneys fees . Notwithstanding the foregoing, the arbitrator may require that such fees be borne in such other manner as the arbitrator determines is required in order for this arbitration provision to be enforceable under applicable law. The arbitrator shall issue a written opinion stating the essential findings and companyclusions upon which the arbitrators award is based. The arbitrator shall have the power to enter temporary restraining orders and preliminary and permanent injunctions. No party shall be entitled or permitted to companymence or maintain any action in a companyrt of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the arbitrators award provided, however, that prior to the appointment of the arbitrator or for remedies beyond the jurisdiction of an arbitrator, at any time, any party may seek equitable relief in a companyrt of companypetent jurisdiction in Singapore, or such other companyrt that may have jurisdiction over the Parties, without thereby waiving its right to arbitration of the dispute or companytroversy under this section. THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO THIS DEED, THE BREACH THEREOF AND OR THE SCOPE OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF. The respondent made three payments totaling Rs.125 crores to the appellant under the Facilitation Deed during 2009 and did number make the balance payment. Instead, on 25.06.2010, the respondent wrote to the appellant rescinding the Facilitation Deed on the ground that it was voidable on account of misrepresentation and fraud. On 25.06.2010, the respondent also filed Suit No.1869 of 2010 for inter alia a declaration that the Facilitation Deed was void and for recovery of Rs.125 crores already paid to the appellant. On 28.06.2010, the appellant acting under Clause 9 of the Facilitation Deed sent a request for arbitration to ICC Singapore and the ICC issued a numberice to the respondent to file its answer to the request for arbitration. In the meanwhile, on 30.06.2010, the respondent filed a second suit, Suit No.1828 of 2010, before the Bombay High Court against the appellant for inter alia a declaration that as the Facilitation Deed stood rescinded, the appellant was number entitled to invoke the arbitration clause in the Facilitation Deed. The respondent also filed an application for temporary injunction against the appellant from companytinuing with the arbitration proceedings companymenced by the appellant under the aegis of ICC. On 09.08.2010, the learned Single Judge of the Bombay High Court dismissed the application for temporary injunction of the respondent saying that it would be for the arbitrator to companysider whether the Facilitation Deed was void on account of fraud and misrepresentation and that the arbitration must, therefore, proceed and the Court companyld number intervene in matters governed by the arbitration clause. The respondent challenged the order of the learned Single Judge before the Division Bench of the Bombay High Court and by the impugned order, the Division Bench of the Bombay High Court allowed the appeal, set aside the order of the learned Single Judge and passed an order of temporary injunction restraining the arbitration by ICC. Aggrieved, the appellant has filed this appeal. Contentions on behalf of the appellant Mr. K.K. Venugopal, learned senior companynsel for the appellant, submitted that the Division Bench of the High Court failed to appreciate that the Bombay High Court had numberjurisdiction to pass an order of injunction restraining a foreign seated international arbitration at Singapore between the parties, who were number residents of India. In this companytext, he referred to Clause 9 of the Facilitation Deed which stipulated that any party may seek equitable relief in a companyrt of companypetent jurisdiction in Singapore, or such other companyrt that may have jurisdiction over the parties. He submitted that on the principle of Comity of Courts, the Bombay High Court should have refused to interfere in the matter and should have allowed the parties to resolve their dispute through ICC arbitration, subject to the jurisdiction of the Singapore companyrts in accordance with Clause 9 of the Facilitation Deed. Mr. Venugopal next submitted that the Division Bench of the High Court failed to appreciate that under Section 45 of the Act, the Court seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44 has to refer the parties to arbitration, unless it finds that the agreement referred to in Section 44 is null and void, inoperative or incapable of being performed. He submitted that the agreement referred to in Section 44 of the Act is an agreement in writing for arbitration and, therefore, unless the Court finds that the agreement in writing for arbitration is null and void, inoperative or incapable of being performed, the Court will number entertain a dispute companyered by the arbitration agreement and refer the parties to the arbitration. In support of this submission, he relied on the decision of this Court in Chloro Controls India Private Limited v. Seven Trent Water Purification Inc. Ors. 2013 1 SCC 641. Mr. Venugopal submitted that the Division Bench of the High Court, instead of examining whether the agreement in writing for arbitration was null and void, inoperative or incapable of being performed, has held that the entire Facilitation Deed was vitiated by fraud and misrepresentation and was, therefore, void. He vehemently submitted that it was for the arbitrator to decide whether the Facilitation Deed was void on account of fraud and misrepresentation as has been rightly held by the learned Single Judge and it was number for the Court to pronounce on whether the Facilitation Deed was void on account of fraud and misrepresentation. He referred to Article 6 4 of the ICC Rules of Arbitration which permits the Arbitral Tribunal to companytinue to exercise jurisdiction and adjudicate the claims even if the main companytract is alleged to be null and void or number-existent because the arbitration clause is an independent and distinct agreement. He submitted that this principle of Kompetenz Kompetenz has been recognized in Section 16 of the Act under which the Arbitral Tribunal has the companypetence to rule on its own jurisdiction and on this point relied on National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd. 2009 1 SCC 267 and Reva Electric Car Company Private Ltd. v. Green Mobil 2012 2 SCC He submitted that as a companyollary to this principle, Courts have also held that unless the arbitration clause itself, apart from the underlying companytract, is assailed as vitiated by fraud or misrepresentation, the Arbitral Tribunal will have jurisdiction to decide all issues including the validity and scope of the arbitration agreement. He submitted that in the present case, the arbitration clause itself was number assailed as vitiated by fraud or misrepresentation. In support of this argument, he relied on the decision of the House of Lords in Premium Nafta Products Ltd. v. Fili Shipping Company Ltd. Ors. 2007 UKHL 40, the decision of the Supreme Court of United States in Buckeye Check Cashing, Inc. v. John Cardegna et al 546 US 440 2006 and the decision of this Court in Branch Manager, Magma Leasing and Finance Ltd. Anr. v. Potluri Madhavilata Anr. 2009 10 SCC 103. Mr. Venugopal submitted that the Division Bench of the High Court relied on the decision in N. Radhakrishnan v. Maestro Engineers Ors. 2010 1 SCC 72 to hold that serious allegations of fraud can only be enquired by a Court and number by an arbitrator, but the Division Bench failed to appreciate that in N. Radhakrishnan v. Maestro Engineers Ors. supra this Court relied on Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak AIR 1962 SC 406 in which it was observed that it is only a party against whom a fraud is alleged who can request the Court to inquire into the allegations of fraud instead of allowing the arbitrator to decide on the allegations of fraud. In the present case, the respondent has alleged fraud against the appellant and thus it was for the appellant to make a request to the Court to decide on the allegations of fraud instead of referring the same to the arbitrator, and numbersuch request has been made by the appellant. He further submitted that in any case the judgment of this Court in N. Radhakrishnan v. Maestro Engineers Ors. supra was rendered in the companytext of domestic arbitration in reference to the provisions of Section 8 of the Act. He submitted that the language of Section 45 of the Act, which applies to an international arbitration, is substantially different from the language of Section 8 of the Act and it will be clear from the language of Section 45 of the Act that unless the arbitration agreement is null and void, inoperative or incapable of being performed, the parties will have to be referred to arbitration by the Court. In the present case, the respondent has number made out that the arbitration agreement is null and void, inoperative or incapable of being performed. Mr. Venugopal submitted that the High Court has taken a view that Clause 9 forecloses an open trial in a companyrt of law except to the extent permitted therein and the parties have to necessarily submit themselves to a companyfidential proceeding which is closed to the general public. He submitted that the Bombay High Court thus appears to have held that Clause 9 is opposed to public policy and, in particular, Sections 23 and 28 of the Indian Contract Act, 1872. He submitted that in any case the arbitration agreement companytained in Clause 9 of the Facilitation Deed cannot be held to be opposed to public policy and void under Sections 23 and 28 of the Indian Contract Act, 1872. This will be clear from Exception 1 of Section 28 of the Indian Contract Act, 1872, which says that the 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. He explained that under the American Law, in a suit for companymon law where the value of claim is more than US20, the right to jury trial is preserved and this applies even in relation to claims for breach of companytract and for this reason, the parties made a provision in Clause 9 of the Facilitation Deed waiving their right to jury trial with respect to all claims and issues arising under, in companynection with, touching upon or relating to the Facilitation Deed. He submitted that this provision in Clause 9 of the Facilitation Deed cannot, therefore, be held to be opposed to public policy. Mr. Venugopal next submitted that the crux of the case of the respondent is set out in its letter dated 25.06.2010 to the appellant in which it was alleged that in view of the false misrepresentations and fraud played by WSGM the deed is voidable at the option of our client and thus our client rescinds the deed with immediate effect. In other words, the respondents case is that it was induced to enter into the Facilitation Deed on account of the misrepresentation by the appellant and was led to believe that it was paying the facilitation fees to the appellant to allow the rights of the appellant under an alleged agreement dated 23.03.2009 to lapse, but the respondent subsequently discovered that there was numberagreement dated 23.03.2009 and the rights of the appellant had companye to an end on 24.03.2009. He submitted that the appellant has denied these allegations of the respondent in its affidavit-in-reply filed before the Bombay High Court and that there was numberfalse representation and fraud as alleged by the respondent. He submitted that the Facilitation Deed was executed by the senior executives of the parties and in the case of respondent, it was signed by Michael Grindon, President, International, Sony Picture Television, and the appellant and the respondent had entered into the Facilitation Deed after companysulting their sports media experts and after a lot of negotiations. He submitted that in fact a Press Release was issued by the respondent on 23.04.2010, which will go to show that there was numbermisrepresentation and fraud by the appellant before the Facilitation Deed was signed by the parties, and thus the entire case of the respondent that the Facilitation Deed was vitiated by misrepresentation and fraud is false. Mr. Venugopal finally submitted that it will be clear from the language of the letter dated 25.06.2010 of the respondent to the appellant that according to the respondent the Facilitation Deed was voidable at the option of the respondent. He submitted that under Section 45 of the Act, the Court will have to refer the parties to the arbitration unless it finds that the arbitration agreement is null and void. He argued that an agreement which is voidable at the option of one of the parties is number the same as the agreement which is void and, therefore, the Division Bench of the High Court should have referred the parties to arbitration instead of restraining the arbitration. According to Mr. Venugopal, this is a fit case in which this Court should set aside the impugned order of the Division bench of the High Court and restore the order of the learned Single Judge of the High Court. Contentions on behalf of the respondent In reply, Mr. Gopal Subramanium, learned senior companynsel appearing for the respondent, submitted that the Division Bench of the Bombay High Court has rightly restrained the arbitration proceedings under the aegis of ICC as the Facilitation Deed, which also companytains the arbitration agreement in Clause 9, is void because of fraud and misrepresentation by the appellant. He submitted that Section 45 of the Act makes it clear that the Court will number refer the parties to arbitration if the arbitration agreement is null and void, inoperative or incapable of being performed and as the respondent has taken the plea that the Facilitation Deed, which companytained the arbitration agreement, is null and void on account of misrepresentation and fraud, the Court will have to decide whether the Facilitation Deed including the arbitration agreement in Clause 9 was void on account of fraud and misrepresentation by the appellant. He submitted that the respondent filed the first suit in the Bombay High Court Suit No.1869 of 2010 for declaring the Facilitation Deed as null and void but in the said suit, the appellant did number file a written statement and instead issued the numberice for arbitration only to frustrate the first suit and in the circumstances the respondent was companypelled to file the second suit Suit No.1828 of 2010 for an injunction restraining the arbitration. Mr. Subramanium submitted that Section 9 of the Code of Civil Procedure, 1908 for short the CPC companyfers upon the companyrt jurisdiction to try all civil suits except suits which are either expressly or impliedly barred. He submitted that the Bombay High Court, therefore, had the jurisdiction to try both the first suit and the second suit and there was numberexpress or implied bar in Section 45 of the Act restraining the Bombay High Court to try the first suit and the second suit. He submitted that in India as well as in England, Courts have power to issue injunctions to restrain parties from proceeding with arbitration proceedings in foreign companyntries. In support of this submission, he relied on V.O. Tractoroexport, Moscow v. Tarapore Company and Anr. 1969 3 SCC 562 and Oil and Natural Gas Commission Western Company of North America 1987 1 SCC 496. He also relied on Russel on Arbitration, para 7-056, 7-058, and Claxton Engineering v. Txm olaj es gaz Kutao Ktf 2011 EWHC 345 COMM. . Mr. Subramanium relying on the decision of this Court in Chloro Controls India Private Limited v. Seven Trent Water Purification Inc. Ors. supra submitted that Section 45 of the Act casts an obligation on the companyrt to determine the validity of the agreement at the threshold itself because this is an issue which goes to the root of the matter and a decision on this issue will prevent a futile exercise of proceedings before the arbitrator. He submitted that under Section 45 of the Act the Court is required to companysider number only a challenge to the arbitration agreement but also a serious challenge to the substantive companytract companytaining the arbitration agreement. He cited the decision of this Court in SMS Tea Estates P Ltd. v. Chandmari Tea Co. P Ltd. 2011 14 SCC 66 in support of this argument. He submitted that the companytention on behalf of the appellant that the Court has to determine only whether the arbitration agreement companytained in the main agreement is void is, therefore, number companyrect. Mr. Subramanium next submitted that in cases where allegations of fraud are prima facie made out, the judicial trend in India has been to have them adjudicated by the Court. In this companytext, he referred to the decisions of this Court in Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak supra , Haryana Telecom Ltd. v. Sterlite Industries India Ltd. 1999 5 SCC 688 and N. Radhakrishnan v. Maestro Engineers Ors. supra . In reply to the submission of Mr. Venugopal that it was only the parties against whom the allegations are made who can insist on the allegations being decided by the Court, Mr. Subramanium submitted that in the decision of the Madras High Court in G. Oomor Sait v. O Aslam Sait 2001 3 CTC 269 Mad referred to in Radhakrishnan v. Maestro Engineers Ors. supra the situation was reverse. Mr. Subramanium next submitted that the facts in this case prima facie establish that a grave fraud was played by the appellant number only upon the respondent but also on the BCCI. He argued that the Facilitation Deed ultimately deals with media rights belonging to the BCCI and it has been held by this Court in M s Zee Tele Films Ltd. Anr. v. Union of India Ors. AIR 2005 SC 2677 that BCCI is a public body. He submitted that the Division Bench of the Bombay High Court has, therefore, rightly taken the view that the disputes in this case cannot be kept outside the purview of the Indian Courts and if arbitration is allowed to go on without BCCI, the interest of BCCI will be adversely affected. He submitted that having regard to the magnitude of fraud alleged in the present case, the disputes were incapable of being arbitrated. Relying on Booz Allen Hamilton v. SBI Home Finance 2011 5 SCC 532, Haryana Telecom Ltd. v. Sterlite Industries India Ltd. Supra , India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd. 2007 5 SCC 510 and N. Radhakrishnan v. Maestro Engineers Ors. supra , he submitted that such allegations of fraud can only be inquired into by the companyrt and number by the arbitrator. Findings of the Court The question that we have to decide is whether the Division Bench of the Bombay High Court companyld have passed the order of injunction restraining the arbitration at Singapore between the parties. As various companytentions have been raised by Mr. Venugopal, learned companynsel for the appellant, in support of the case of the appellant that the Division Bench of the Bombay High Court companyld number have passed the order of injunction restraining the arbitration at Singapore, we may deal with each of these companytentions separately and record our findings. While recording our findings, we will also deal with the submissions made by Mr. Gopal Subramanium on behalf of respondent in reply to the companytentions of Mr. Venugopal. We will also companysider the companyrectness of the findings of the Division Bench of the Bombay High Court separately. We are unable to accept the first companytention of Mr. Venugopal that as Clause 9 of the Facilitation Deed provides that any party may seek equitable relief in a companyrt of companypetent jurisdiction in Singapore, or such other companyrt that may have jurisdiction over the parties, the Bombay High Court had numberjurisdiction to entertain the suit and restrain the arbitration proceedings at Singapore because of the principle of Comity of Courts. In Blacks Law Dictionary, 5th Edition, Judicial Comity, has been explained in the following words Judicial companyity. The principle in accordance with which the companyrts of one state or jurisdiction will give effect to the laws and judicial decisions of another, number as a matter of obligation, but out of deference and respect. Thus, what is meant by the principle of companyity is that companyrts of one state or jurisdiction will give effect to the laws and judicial decisions of another state or jurisdiction, number as a matter of obligation but out of deference and mutual respect. In the present case numberdecision of a companyrt of foreign companyntry or numberlaw of a foreign companyntry has been cited on behalf of the appellant to companytend that the companyrts in India out of deference to such decision of the foreign companyrt or foreign law must number assume jurisdiction to restrain arbitration proceedings at Singapore. On the other hand, as has been rightly submitted by Mr. Subramanium, under Section 9 of the CPC, the companyrts in India have jurisdiction to try all suits of a civil nature excepting suits of which companynizance is either expressly or impliedly barred. Thus, the appropriate civil companyrt in India has jurisdiction to entertain the suit and pass appropriate orders in the suit by virtue of Section 9 of the CPC and Clause 9 of the Facilitation Deed providing that companyrts in Singapore or any other companyrt having jurisdiction over the parties can be approached for equitable relief companyld number oust the jurisdiction of the appropriate civil companyrt companyferred by Section 9 of the CPC. We find that in para 64 of the plaint in Suit No.1828 of 2010 filed before the Bombay High Court by the respondent, it is stated that the Facilitation Deed in which the arbitration clause is incorporated came to be executed by the defendant at Mumbai and the fraudulent inducement on the part of the defendant resulting in the plaintiff entering into the Facilitation Deed took place in Mumbai and the rescission of the Facilitation Deed on the ground that it was induced by fraud of defendant has also been issued from Mumbai. Thus, the cause of action for filing the suit arose within the jurisdiction of the Bombay High Court and the Bombay High Court had territorial jurisdiction to entertain the suit under Section 20 of the CPC. Any civil companyrt in India which entertains a suit, however, has to follow the mandate of the legislature in Sections 44 and 45 in Chapter I of Part II of the Act, which are quoted hereinbelow CHAPTER I NEW YORK CONVENTION AWARDS Definition. In this Chapter, unless the companytext otherwise requires, foreign award means an arbitral award on differences between persons arising out of legal relationships, whether companytractual or number, companysidered as companymercial under the law in force in India, made on or after the 11th day of October, 1960 - a in pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and b in one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by numberification in the Official Gazette, declare to be territories to which the said Convention applies. Power of judicial authority to refer parties to arbitration.- Notwithstanding anything companytained in Part I or in the Code of Civil Procedure, a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. The language of Section 45 of the Act quoted above makes it clear that numberwithstanding anything companytained in Part I or in the Code of Civil Procedure, a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. Thus, even if, under Section 9 read with Section 20 of the CPC, the Bombay High Court had the jurisdiction to entertain the suit, once a request is made by one of the parties or any person claiming through or under him to refer the parties to arbitration, the Bombay High Court was obliged to refer the parties to arbitration unless it found that the agreement referred to in Section 44 of the Act was null and void, inoperative or incapable of being performed. In the present case, the appellant may number have made an application to refer the parties to arbitration, but Section 45 of the Act does number refer to any application as such. Instead, it refers to the request of one of the parties or any person claiming through or under him to refer the parties to arbitration. In this case, the appellant may number have made an application to refer the parties to arbitration at Singapore but has filed an affidavit in reply to the numberice of motion and has stated in paragraphs 3, 4 and 5 of this affidavit that the defendant had already invoked the arbitration agreement in the Facilitation Deed and the arbitration proceedings have companymenced and that the suit was an abuse of the process of companyrt. The appellant had thus made a request to refer the parties to arbitration at Singapore which had already companymenced. Section 45 of the Act quoted above also makes it clear that even where such request is made by a party, it will number refer the parties to arbitration, if it finds that the agreement is null and void, inoperative or incapable of being performed. As the very language of Section 45 of the Act clarifies the word agreement would mean the agreement referred to in Section 44 of the Act. Clause a of Section 44 of the Act refers to an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies. The First Schedule of the Act sets out the different Articles of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. Article II of the New York Convention is extracted hereinbelow Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of defined legal relationship, whether companytractual or number, companycerning a subject-matter capable of settlement by arbitration. The term agreement in writing shall include an arbitral clause in a companytract or an arbitration agreement, signed by the parties or companytained in an exchange of letters or telegrams. The companyrt of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed. It will be clear from clauses 1, 2 and 3 of the New York Convention as set out in the First Schedule of the Act that the agreement referred to in Section 44 of the Act is an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them. Thus, the companyrt will decline to refer the parties to arbitration only if it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. According to Mr. Subramanium, however, as the main agreement is voidable on account of fraud and misrepresentation by the appellant, clause 9 of the main agreement which companytains the arbitration agreement in writing is also null and void. In support of his submission, he cited the decision of this Court in SMS Tea Estates P Ltd. v. Chandmari Tea Co. P Ltd. supra . Paragraphs 12 and 13 of the judgment of this Court in SMS Tea Estates P Ltd. v. Chandmari Tea Co. P Ltd. supra are quoted hereinbelow When a companytract companytains an arbitration agreement, it is a companylateral term relating to the resolution of disputes, unrelated to the performance of the companytract. It is as if two companytractsone in regard to the substantive terms of the main companytract and the other relating to resolution of disputeshad been rolled into one, for purposes of companyvenience. An arbitration clause is therefore an agreement independent of the other terms of the companytract or the instrument. Resultantly, even if the companytract or its performance is terminated or companyes to an end on account of repudiation, frustration or breach of companytract, the arbitration agreement would survive for the purpose of resolution of disputes arising under or in companynection with the companytract. Similarly, when an instrument or deed of transfer or a document affecting immovable property companytains an arbitration agreement, it is a companylateral term relating to resolution of disputes, unrelated to the transfer or transaction affecting the immovable property. It is as if two documentsone affecting the immovable property requiring registration and the other relating to resolution of disputes which is number companypulsorily registerableare rolled into a single instrument. Therefore, even if a deed of transfer of immovable property is challenged as number valid or enforceable, the arbitration agreement would remain unaffected for the purpose of resolution of disputes arising with reference to the deed of transfer. In the aforesaid case, this Court has held that if the document companytaining the main agreement is number found to be duly stamped, even if it companytains arbitration clause, it cannot be acted upon because Section 35 of the Stamp Act bars the said document from being acted upon, but if the document is found to be duly stamped but number registered though required to be companypulsorily registered, the companyrt can act upon the arbitration agreement which is a companylateral term of the main agreement and is saved by the proviso to Section 49 of the Registration Act. Thus, as per the aforesaid decision of this Court in SMS Tea Estates P Ltd. v. Chandmari Tea Co. P Ltd. supra , the companyrt will have to see in each case whether the arbitration agreement is also void, unenforceable or inoperative along with the main agreement or whether the arbitration agreement stands apart from the main agreement and is number null and void. The House of Lords has explained this principle of separability in Premium Nafta Products Ltd. v. Fili Shipping Company Ltd. Ors. supra thus The principle of separability enacted in section 7 means that the invalidity or rescission of the main companytract does number necessarily entail the invalidity or rescission of the arbitration agreement. The arbitration agreement must be treated as a distinct agreement and can be void or voidable only on grounds which relate directly to the arbitration agreement. Of companyrse there may be cases in which the ground upon which the main agreement is invalid is identical with the ground upon which the arbitration agreement is invalid. For example, if the main agreement and the arbitration agreement are companytained in the same document and one of the parties claims that he never agreed to anything in the document and that his signature was forged, that will be an attack on the validity of the arbitration agreement. But the ground of attack is number that the main agreement was invalid. It is that the signature to the arbitration agreement, as a distinct agreement, was forged. Similarly, if a party alleges that someone who purported to sign as agent on his behalf had numberauthority whatever to companyclude any agreement on his behalf, that is an attack on both the main agreement and the arbitration agreement. On the other hand, if as in this case the allegation is that the agent exceeded his authority by entering into a main agreement in terms which were number authorized or for improper reasons, that is number necessarily an attack on the arbitration agreement. It would have to be shown that whatever the terms of the main agreement or the reasons for which the agent companycluded it, he would have had numberauthority to enter into an arbitration agreement. Even if the allegation is that there was numberconcluded agreement for example, that terms of the main agreement remained to be agreed that is number necessarily an attack on the arbitration agreement. If the arbitration clause has been agreed, the patties will be presumed to have intended the question of whether there was a companycluded main agreement to be decided by arbitration. Applying the principle of separability to the facts of this case, the respondent rescinded the Facilitation Deed by numberice dated 25.06.2010 to the appellant on the following grounds stated in the said numberice by its lawyers Reference is made to the Deed for the Provison of Facilitation Services dated March 25, 2009 the Deed between World Sport Group Mauritius Limited WSGM and our client. Under the Deed, which is styled as a facilitation agreement, our client agreed to pay WSGM facilitation fees for the facilitation services stated thereunder to have been provided by WSGM. The underlying companysideration for the payments by our client to WSGM, in fact were the representation made by WSGM that a WSGM, had executed in India BCCI whereunder WSGM had been unfettered Global Media Rights the said rights , including the Indian Subcontinent implying thereby as natural companyollary that the earlier Media Rights agreement dated March 15, 2009 between WSGM and BCCI along with its restrictive companyditions had been mutually terminated b WSGM companyld thereafter relinquish the Media Rights for the Indian Subcontinent in favour of our client for said valuable companysideration to enable our client to enter into a direct agreement with BCCI c the said rights were subsisting with WSGM at the time of execution of the Deed, i.e, March 25, 2009 and d WSGM had relinquished those rights in favour of BCCI to enable BCCI and our client to execute a direct Media Rights License Agreement for the Indian Subcontinent. BCCI has recently brought to the attention of our client that the Global Media Rights agreement between WSGM and BCCI dated March 23, 2009 does number exist and in terms of Clause 13.5 of the agreement dated March 15, 2009, after expiry of the 2nd extension the media rights had automatically reverted to BCCI at 3 a.m. on March 24, 2009 and thus at the time of execution of the Deed, WSGM did number have any rights to relinquish and or to facilitate the procurement of India Subcontinent media rights for the IPL from BCCI and thus numberfacilitation services companyld have been provided by WSGM. In view of the above, it is evident that the representation by WSGM that WSGM relinquished its Indian Subcontinent media rights for the IPL in favour of our client to pay the facilitation fees under the Deed. Taking companynizance of the same, BCCIs Governing companyncil at its meeting held at Mumbai, India on June 25, 2010 appropriately executed an amendment to Media Rights License Agreement dated March 25, 2009 between BCCI and our client by deleting, inter alia, clause 10.4 thereof. On its part, and in view of the false representations and fraud played by WSGM, the Deed is voidable at the option of our client and thus our client rescinds the Deed with immediate effect. The ground taken by respondent to rescind the Facilitation Deed thus is that the appellant did number have any right to relinquish and or to facilitate the procurement of Indian subcontinent media rights for the IPL from BCCI and numberfacilitation services companyld have been provided by the appellant and therefore the representation by the appellant that the appellant relinquished its Indian subcontinent media rights for the IPL in favour of the respondent for which the appellant had to be paid the facilitation fee under the deed was false and accordingly the Facilitation Deed was voidable at the option of the respondent on account of false representation and fraud. This ground of challenge to the Facilitation Deed does number in any manner affect the arbitration agreement companytained in Clause 9 of the Facilitation Deed, which is independent of and separate from the main Facilitation Deed and does number get rescinded as void by the letter dated 25.06.2010 of the respondent. The Division Bench of the Bombay High Court, therefore, companyld number have refused to refer the parties to arbitration on the ground that the arbitration agreement was also void along with the main agreement. Mr. Gopal Subramaniums companytention, however, is also that the arbitration agreement was inoperative or incapable of being performed as allegations of fraud companyld be enquired into by the companyrt and number by the arbitrator. The authorities on the meaning of the words inoperative or incapable of being performed do number support this companytention of Mr. Subramanium. The words inoperative or incapable of being performed in Section 45 of the Act have been taken from Article II 3 of the New York Convention as set out in para 22 of this judgment. Redfern and Hunter on International Arbitration Fifth Edition published by the Oxford University Press has explained the meaning of these words inoperative or incapable of being performed used in the New York Convention at page 148, thus At first sight it is difficult to see a distinction between the terms inoperative and incapable of being performed. However, an arbitration clause is inoperative where it has ceased to have effect as a result, for example, of a failure by the parties to companyply with a time limit, or where the parties have by their companyduct impliedly revoked the arbitration agreement. By companytrast, the expression incapable of being performed appears to refer to more practical aspects of the prospective arbitration proceedings. It applies, for example, if for some reason it is impossible to establish the arbitral tribunal. Albert Jan Van Den Berg in an article titled The New York Convention, 1958 An Overview published in the website of ICCA www.arbitration-icca.org media/0/12125884227980/newyorkconventionof- 1958overview.pdf, referring to Article II 3 of the New York Convention, states The words null and void may be interpreted as referring to those cases where the arbitration agreement is affected by some invalidity right from the beginning, such as lack of companysent due to misrepresentation, duress, fraud or undue influence. The word inoperative can be said to companyer those cases where the arbitration agreement has ceased to have effect, such as revocation by the parties. The words incapable of being performed would seem to apply to those cases where the arbitration cannot be effectively set into motion. This may happen where the arbitration clause is too vaguely worded, or other terms of the companytract companytradict the parties intention to arbitrate, as in the case of the so-called companyequal forum selection clauses. Even in these cases, the companyrts interpret the companytract provisions in favour of arbitration. The book Recognition and Conferment of Foreign Arbitral Awards A Global Commentary on the New York Convention by Kronke, Nacimiento, et al. ed. 2010 at page 82 says Most authorities hold that the same schools of thought and approaches regarding the term null and void also apply to the terms inoperative and incapable of being performed. Consequently, the majority of authorities do number interpret these terms uniformly, resulting in an unfortunate lack of uniformity. With that caveat, we shall give an overview of typical examples where arbitration agreements were held to be or number to be inoperative or incapable of being performed. The terms inoperative refers to cases where the arbitration agreement has ceased to have effect by the time the companyrt is asked to refer the parties to arbitration. For example, the arbitration agreement ceases to have effect if there has already been an arbitral award or a companyrt decision with res judicata effect companycerning the same subject matter and parties. However, the mere existence of multiple proceedings is number sufficient to render the arbitration agreement inoperative. Additionally, the arbitration agreement can cease to have effect if the time limit for initiating the arbitration or rendering the award has expired, provided that it was the parties intent numberlonger to be bound by the arbitration agreement due to the expiration of this time limit. Finally, several authorities have held that the arbitration agreement ceases to have effect if the parties waive arbitration. There are many possible ways of waiving a right to arbitrate. Most companymonly, a party will waive the right to arbitrate if, in a companyrt proceeding, it fails to properly invoke the arbitration agreement or if it actively pursues claims companyered by the arbitration agreement. Thus, the arbitration agreement does number become inoperative or incapable of being performed where allegations of fraud have to be inquired into and the companyrt cannot refuse to refer the parties to arbitration as provided in Section 45 of the Act on the ground that allegations of fraud have been made by the party which can only be inquired into by the companyrt and number by the arbitrator. N. Radhakrishnan v. Maestro Engineers Ors. supra and Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak supra were decisions rendered in the companytext of domestic arbitration and number in the companytext of arbitrations under the New York Convention to which Section 45 of the Act applies. In the case of such arbitrations companyered by the New York Convention, the Court can decline to make a reference of a dispute companyered by the arbitration agreement only if it companyes to the companyclusion that the arbitration agreement is null and void, inoperative or incapable of being performed, and number on the ground that allegations of fraud or misrepresentation have to be inquired into while deciding the disputes between the parties. We may number companysider the companyrectness of the findings of the Division Bench of the High Court in the impugned judgment. The Division Bench of the High Court has held that the Facilitation Deed was part of several agreements entered into amongst different parties companymencing from 25.03.2009 and, therefore, cannot be companysidered as stand apart agreement between the appellant and the respondent and so companysidered the Facilitation Deed as companytrary to public policy of India because it is linked with the finances, funds and rights of the BCCI, which is a public body. This approach of the Division Bench of the High Court is number in companysonance with the provisions of Section 45 of the Act, which mandates that in the case of arbitration agreements companyered by the New York Convention, the Court which is seized of the matter will refer the parties to arbitration unless the arbitration agreement is null and void, inoperative or incapable of being performed. In view of the provisions of Section 45 of the Act, the Division Bench of the High Court was required to only companysider in this case whether Clause 9 of the Facilitation Deed which companytained the arbitration agreement was null and void, inoperative or incapable of being performed. The Division Bench of the High Court has further held that Clause 9 of the Facilitation Deed insofar as it restricted the right of the parties to move the companyrts for appropriate relief and also barred the right to trial by a jury was void for being opposed to public policy as provided in Section 23 of the Indian Contract Act, 1872 and was also void for being an agreement in restraint of the legal proceedings in view of Section 28 of the said Act. Parliament has made the Arbitration and Conciliation Act, 1996 providing domestic arbitration and international arbitration as a mode of resolution of disputes between the parties and Exception 1 to Section 28 of the Indian Contract Act, 1872 clearly states that Section 28 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. Clause 9 of the Facilitation Deed is companysistent with this policy of the legislature as reflected in the Arbitration and Conciliation Act, 1996 and is saved by Exception 1 to Section 28 of the Indian Contract Act, 1872. The right to jury trial is number available under Indian laws. The finding of the Division Bench of the High Court, therefore, that Clause 9 of the Facilitation Deed is opposed to public policy and is void under Sections 23 and 28 of the Indian Contract Act, 1872 is clearly erroneous. The Division Bench of the High Court has also held that as allegations of fraud and serious malpractices on the part of the appellant are in issue, it is only the companyrt which can decide these issues through furtherance of judicial evidence by either party and these issues cannot be properly gone into by the arbitrator. As we have already held, Section 45 of the Act does number provide that the companyrt will number refer the parties to arbitration if the allegations of fraud have to be inquired into. Section 45 provides that only if the companyrt finds that the arbitration agreement is null and void, inoperative or incapable of being performed, it will decline to refer the parties to arbitration. The Division Bench of the High companyrt has further held that since the earlier suit Suit No.1869 of 2010 was pending in companyrt since 25.06.2010 and that suit was inter-connected and inter-related with the second suit Suit No.1828 of 2010 , the companyrt companyld number allow splitting of the matters and disputes to be decided by the companyrt in India in the first suit and by arbitration abroad in regard to the second suit and invite companyflicting verdicts on the issues which are inter-related. This reasoning adopted by the Division Bench of the Bombay High Court in the impugned judgment is alien to the provisions of Section 45 of the Act which does number empower the companyrt to decline a reference to arbitration on the ground that another suit on the same issue is pending in the Indian companyrt.

KURIAN, J. Leave granted. I.A. No.68830/2017 is allowed, in terms of the prayer made. The appellants are before this Court, aggrieved by the judgment dated 30.09.2016 passed by the High Court of Punjab and Haryana at Chandigarh in LPA Nos.1395, 1398, 1400 and 1396 of 2015. The High Court took the stand that the appellants are number entitled for appointment, since their claim is highly belated. Signature Not Verified 4. However, the fact remains that the appellants had Digitally signed by NARENDRA PRASAD Date 2017.12.16 104159 IST Reason been before this Court seeking impleadment when the special leave petitions were pending before this Court. It was this Court which relegated them to pursue their remedy before the High Court. True, some of the appellants had already filed special leave petition s . Be that as it may, when this matter came up for hearing before this Court on 07.12.2017, we directed the companynsel for the State of Punjab to get instruction as to the availability of the vacancies and as to whether the appellants are otherwise qualified, going by the Report of the Committee appointed by the High Court. This order was passed on the basis of the information that there were unfilled vacancies available as against numberified vacancies in the post of Excise and Taxation Inspector. Learned companynsel for the State of Punjab has made available a written instruction to the effect that there are 12 vacancies as against the 1999 Notification SC-05, BC-03, ESM-3 and Gen-03 . However, it is also number disputed that as of number, there are 76 vacancies available in various categories as can be seen from the affidavit filed by the State. Having heard the learned companynsel on both the sides and having regard to the fact that the vacancies are available as of number to accommodate the appellants and also having regard to the fact that the appellants have been found otherwise qualified by the Committee appointed by the High Court, we are of the view that this is a fit case for invocation of our jurisdiction under Article 142 of the Constitution of India for doing companyplete justice.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos, 172 173 of 1961. Appeals by special leave from the judgment an, order dated July 7, 1961 of the Mysore-High Court in Criminal Appeals Nos. 352 and 355 of 1959 and Criminal Referred Case No. 25 of 1959. H. Hingorani, for the appellants. R. Iyengar and R. H. Dhebar, for the respondents. 1962. April 27. The Judgment of the Court was delivered by MUDHOLKAR, J.-The appellant, China Gowda, was tried along with six other persons for companymitting the murder of an entire family companysisting of eight persons on the night intervening the 12th and 13th February, 1958, in Handigodu hamlet of the village Viavalli. The learned Sessions Judge companyvicted every one of them under a. 302, Indian Penal Code, and sentenced each of them to death. In appeal, the accused No. 2, Sbivappa Naika and accused No. 7, Gunde Gowda were acquitted. The appeals of the remaining accused persons were dismissed. The High Court, however, companyfirmed the companyviction and sentences only of the appellant Chinna Gowda and of Rame Gowda, appellant in Criminal Appeals Nos. 172 and 173 of 1961 and while affirming the companyviction of the other three accused companymuted the death sentences passed against them to imprisonment for life. The. appellants in the two appeals were granted special leave by this Court under Art. 136 of the Constitution and that is how the appeals are number before us. The facts as alleged by the prosecution are briefly these The deceased, Mariappa Gowda took up residence in Handigodu about eight or ten years prior to the murder. He was an industrious and thrifty person and soon became very prosperous. This aroused the envy and jealousy of the appellant, Chinna Gowda. In the companyrse of years, numerous disputes over the boundaries of fields, trespasses on fields, the flow of water and so on arose between the two of them. For some time prior to the murders, the relationship between Mariappa Gowda deceased and the appellant as well as Rame Gowda, the appellant in the other appeal, became very strained. It may be mentioned that Rame Gowds was actually living with Mariappa Gowda for some time and Mariappa Gowda leased out some lands to him. Shortly thereafter, both of them fell out and Mariappa Gowda was anxious to evict Rame Gowda, from the leased lands. Mariappa Gowda was, therefore, reluctant to issue receipts for rent paid by Rame Gowda, to him. This annoyed the latter. Eventually, however, on the intervention of Chandiah Hegde, P. W. 67, Mariappa Gowda passed a receipt in favour of Rame Gowda. To his surprise, Rame Gowda, however, found that the receipt companytained false recitals to the effect that he had surrendered the leased land to Mariyappa Gowda. He, therefore, companyplained about this to Chandiah who promised to settle the matter. In the meanwhile, Rame Gowdas anger increased. One day, he actually stopped the bullock cart of Mariappa and challenged him to try and evict him from the. leased lands. Sometime thereafter he companyplained to one Singappagowda that Mariappa had cheated him and said you will see what I will do to him in a few days. According to the prosecution, the remaining accused were the friends of the appellant, Chinna Gowda but it is number suggested that they had any personal grievance against Mariappa Gowda. It is companymon ground that Mariappas house is 3ituated about a furlong and a half of the house of Chinn Gowda and that numberother house than Chinna Gowdas is nearer Mariappas house. Mariappa lived there with his wife Bellamma and six children. Since he was living in an isolated place, he bad kept a dog. He also used to keep a light burning outside his house. Further, he had a gun which was usually kept loaded in the house. Few days before the incident, the dog had died but the cause of the death of the dog is number known. Between 6.30 and 7.00 a.m. on the morning of February 13,1958, P.W. 12 Narayan of Handigodu who was employed as a labourer by Mariappa Gowda, went, as usual, to his masters house. He was horrified to find that all the doors of the house were open and the inmates of the house were lying on their beds in pools of blood, having been done to death by someone. Thereupon he went to the house of one Harithal Chandegowda, P.W. 31, and informed him of what he had seen. Both of them along with another man proceeded to the village Handigodu. Eventually, the first information was lodged with the police who companymenced investigation. After investigation, the seven accused persons and P.W. 40, Venkappa Naika, who later turned an approver in the case, were arrested in companynection with the murders. During the companyrse of the investigation, P.W. 40, Venkappa Naika, accused No. 3 Manjappa Gowda, and accused No. 4, Manjappa Naika, made companyfessions. Venkappa Naika was tendered, a companyditional pardon on his agreeing to give evidence on behalf of the prosecution. At the companymittal stage, all the three persons retracted their companyfessions. However, all the alleged participants in the crime, except Venkappa Naika, were sent up for trial and were tried by the Additional Sessions Judge, Chikmagalur. At that trial Venkappa Naika gave evidence for the prosecution on the lines of his companyfession, saying that he had retracted the companycessions at the companymital stage as the appellant, Chinna Gowda had threatened to kill him. The learned Additional Sessions Judge, relying mainly on the evidence of the appover, as companyroborated by the retracted companyfessions of two of the amused persons, companyvicted sad sentenced all the accused persons. as already stated. In addition to the evidence of the approver, the prosecution has relied upon the evidence of two witnesses, W. 16, Dugamma, a neigbbour of Chinna Gowda and. P.W. 59 Mariappa, son of Rame Gowda, an agricultural servant of Chinna Gowda. The learned Additional Sessions Judge, as well as the High Court, believed their evidence and regarded it as affording some companyroboration to the evidence of the approver. The prosecution further relied upon the fact that just prior to the date of the murders, Chinn Gowda, who was heavily pressed for money, had arranged to obtain a loan of Rs. 600/- for one T. Shivaiah alias T. Shivaswamy, P.W. 75, who had agreed to advance it to him on February 13, 1958. Inspite of T. Shivaiah agreeing to advance the loan, China Gowda did number go to his house on the appointed day. The suggestion is that after companymitting the murders, all the accused persons looted the cash and jewellery found in that house and the cash was retained by China Gowda with himself, Fi. nally, the companyrts below have relied upon the circumstance that the accused person, in particular the appellants in the two appeals before us, did number, like other innocent villagers, go to make enquiry about the incident or go to the hospital where the dead bodies were taken. The evidence of P.W. 16, Duggamma and that of P.W. 59, Mariayappa does number afford companyroboration to the evidence of the approver on material particulars and in fact two of the statements made by the latter companytradict the evidence of the approver on some important points. The substantial material on which the case rests is thus the evidence of the approver and the retracted companyfessions of two of the accused persons. The question, therefore, is whether companyviction of the appellants companyld be sustained on the basis of this material. There is numberdoubt that s, 133 of the Evidence Act does number debar the companyrt from basing the companyviction of an accused person on the evidence of the approver alone but as has been observed in a large number of cases, including the decision of the Privy Council in Bhuboni Sahu v. The King 1 the Courts, as a matter of prudence, always require that the evidence of the approver should be companyroborated in material particulars. This rule has been founded on s. 114 b of the Evidence Act which enables the Court to presume that an accomplice is number worthy of credit unless he is companyroborated in material particulars, The need for such companyroboration would be all the more greater where, as here, the approver, apart from being a person of bad character by reason of his participation in a heinous crime, cannot be said to be a man of truth since he had refiled from his companyfession before the companymitting magistrate. This circumstance emphasizes, if emphasis was necessary, the need for requiring companyroboration to his evidence in material particulars. The substance of the evidence of the approver, Venkappa Naika, is this. On the day prior to the incident. the appellant Chinna Gowda met him at Thyavananda Angadi when both of them were returning to their village from Sringeri. Venkappa Naika, it may be mentioned, is a bootlegger. Chinna Gowda asked him whether he had any arrack available and upon Venkappa Naika answering in the affirmative, Chinna Gowda gave him Rs. 5/- and asked him to take two bottles of arrack to his house the next evening as there was a party at his house. Accordingly, on the next day, i.e., on the day of the incident, Venkappa Naika went there in the evening carrying with him two bottles of arrack. He did number see Chinna Gowda but saw Manjappa Gowda, accused No. 3, grooming two bullocks in front of the house. He, therefore, 1 1949 L.R. 76 I.A. 147. enquired of him where Chinna Gowda was. On being told by Manjappa Gowda to go to the area garden where Chinna Gowda would shortly be going, Venkappa Naika went there. He numbericed three of the accused persons, Shivappa Naika, Rame Gowda appellant in the other appeal and Gunde Gowda sitting under a jack fruit tree. A little later Manjappa Naika who is accused No. 4 came there and was followed shortly after by Chinna Gowda and Ramappa Naika who is accused No. 5 in the case and Manijappa Gowda. The latter brought rotti and chicken and curry. Thereafter, all the persons present were served with arrack. Then they had a meal companysisting of chicken curry and rotti which was served by the Manjappa Gowda. After finishing their meals they again had a round of arrack. While they were having arrack, Chinna Gowda said. Handi godu Mariappa Gowda is harassing me. We must go and finish him today. Thereupon, Shivappa Naika said, work must be done carefully. Whatever punishment may be meted out., you should number open your mouth. I am there to see to the rest. After that, China Gowda took Shivappa to his house and left him, there and returned alone to the garden. By that time it was midnight. All of them then got up and at the instance of Chinna Gowda went to the house of the deceased Mariappa Gowda. China Gowda, Manjappa Gowda, Manjappa Naika, Rame Gowda and the approver, Venkappa Naika, each had a chopper with him. On the way, Chinna Gowda observed We should number leave even a worm. You must do the work carefully. On reaching the house of Mariappa Gowda they numbericed a bedlamp burning on the Jagali, which was put out by Chinna Gowda. He, as well as Rame Gowda, had torches with them and they, flashed them number and again. Then Rame Gowda struck on the neck of Mariappa Gowda who was, sleeping on the jagali, with-the chopper in his hand. Chinna Gowda dealt a similar blow on the neck of Bellamma who was sleeping close to Mariappa. The approver, himself struck Bellamma on her head. Rame Gowda next struck a male child on his neck. with his chopper. It appears that the others were just looking on. Chinna Gowda looking at Manjappa Naika said, Why are you looking on, fool ? Whereupon that person struck on the neck of Gunda, the eldest son of Mariappa Gowda with his chopper. Thereafter, Cbinna Gowda, Manjappa Gowda and Rame Gowda went inside the house and murdered the four children of Mariappa Gowda who were sleeping there. Then Chinna Gowda re-lighted the bed lamp which had been blown out earlier, took out the bunch of keys from the waist of Mariappa Gowda, opened the lock of one of the rooms of the house and took out from it a trunk. He opened the lock of the trunk. This trunk companytained a gold chain, a pair of bugudis, three gold rings and one gold flower. It also companytained two bundles of. currency numberes. Chinna Gowda took possession of all these articles. In the meanwhile Rame Gowda removed the gold ear-rings from the ears of Bellamma as well as removed her manisara which she was wearing on her neck and handed them over to Chinna Gowda. Chinna Gowda wrapped up the jewellery in a towel and handed it over to Ramappa Naika but he kept the currency numberes with himself Thereafter the party left the house of Mariappa. They went to a nala nearby and washed their hands as well as the choppers. On their way back to the house of Chinna Gowda the latter said, Let the companymotion be over. Thereafter let us distribute the gold and the, money. Let numberone demand it number. There is Shivappa Naika. We ,shall distribute it. Thereupon Manjappa Naika, Rame Gowda and Gunde Gowda went to their respective houses while Chinna Gowda, Manjappa Gowda and Ramappa Naika, went to the house of Chinna Gowda. The approver went along with. them. After reaching the house, Chinna Gowda took the jewellery from Ramappa Naika which he kept inside the house. Chinna Gowda gave the approver a kambal and asked him to sleep on the jagali. He, therefore, slept there along with Majappa Gowda and Manjappa Naika while Chinna morning, the approver left Chinna Godwas house and went to his own house. What is first to be companysidered is the evidence of P. W. 16, Duggamma and that of P. W. 59, Maryappa, sun of Ramae Gowda. We have already indicated that it does number afford companyroboration to the evidence of the approver. The former stated in his evidence that just when she was going to bed she heard Ramappa Naika saying, Torch light fell. At that time, Chinna Gowda and.Manjappa Gowda were with him and all the three of them were on the jagali. There is numberreference whatsoever to the flashing of the torch in theevidence of the approver. All that companyld be said is that there is perhaps a partial companyroboration to the statement of the approver that while some of the participants in the crime were sitting in the arena garden early in the evening, Chinn Gowda and Rammappa Naika came there together and were followed shortly after by Manjappa Gowda. But much importance cannot be attached to a partial companyroboration. Later in her evidence, Daggamma stated that she woke up during the night and numbericed torch light being flashed on her jagali. Just then Chinna Gowda came near the jagali. Thereupon she asked ,,who is it. On that, Chinna Gowda said ,No one. Have you number got sleep. Sleep on. Now, according to the approver, he was accompanying Chinna Gowda at that time, but there is numberreference whatsoever to the incident in his evidence, In the circumstances, it cannot afford any companyroboration to any part of the evidence of the approver. Now, companying to the evidence of P. W. 59, Maryappa, son of Rame Gowda, who was a servant of Chinna Gowda, what he says is that on the evening of the date of the incident, the approver, Venkappa Naika came to his masters house and asked Manjappa Gowda where the appellant Chinna Gowda was. Thereupon Manjappa Gowda told him that Chinna Gowda was number at home, and perhaps had gone somewhere. After hearing this, Venkappa Naika went towards the garden at about 9.00 or 9.30 p.m. While the witness was sitting on his bed on the jagali of ChinnaGowdas house, Chinna Gowda and Ramappa Naika came to the house and had their meals. Thereafter Chinna Gowda, Manjappa Gowda and Ramappa Naika sat talking on the jagali. When they were chatting he saw a torch lighting flashed on a tree near the house. Thereafter, all these three persons got up saying that they should go to the garden and accordingly went there. Five. or ton Minutes later, they came back to the house. Chinna Gowda warned the witness number to mention to any one about the flashing of the torch. The witness then went to sleep and, got up at 6.00 or 6.30 a. m. He then found Chinna Gowda and Ramappa Naika still in bed on the jagali. Instead of affording any companyroboration to the evidence of the approver, the evidence of this witness companytradicts the approver on several points. Now according to the approver, he went to the garden of being told by Manjappa Gowda to do so, but that is number what the witness says. According to the witness, Chinna Gowda and Ramappa Naika had their food in the house and thereafter, after the torch light was flashed, they went inside the areca garden. According to the approver, all the participants in the crime has barrack as well as chicken curry and rotti in the garden, that the whole party got up at mid-night, Chinna Gowda returned to the house with Shivappa, then came back to the garden after leaving him and then they all went towards the house of the deceased, Mariappa Gowda. According to the witness, number only Chinna Gowda and Ramappa Naika had their meals in the house but that they returned to the jagali five or ten minutes after they went to the garden and it was then 9.30 p.m. This in wholly inconsistent with an important part of the story as narrated by the approver. Finally, while, according to the approver, Chinna Gowda slept inside the house on the night in question, the witness says that he slept on the jagali. Considering, therefore, the evidence of the witness as a whole, it must be said that far from affording companyroboration to the evidence of the approver on material particulars, it companytradicts the evidence of the approver at least with respect to one fact which is material and that is the entire party leaving the garden at midnight for the house of Mariappa Gowda. If the evidence of the witness is true it would seem that Chinna Gowda, instead of going to the house of Mariappa Gowda, along with others returned to his house and slept on his jagali. For, he does number say that after companying back from the garden-at 9.30 p.m., Chinna Gowda again went there. No doubt, the approver said that before going to the house of Mariappa, Chinna Gowda went with Shivappa to his house and then returned immediately. But according to him it was at midnight and number at 9.30 p.m. Thus, far from companyroborating the evidence of the approver in so far as the participation of the appellant Chinna Gowda is companycerned, the evidence of this witness tends to companytradict it. Then there is the companyroboration, said to be afforded by the retracted companycessions of the accused Manjappa Gowda and Manjappa Naika. We have number been taken through the companyfessions of these two persons but we will assume that these two persons tell the same story as the approver but the question is whether the companyfessions can safely be relied upon as affording companyroboration to the evidence of the approver. Since the appellants and the Confessing accused persons, Manjappa Gowda and Manjappa Naika were tried jointly for the same series of offences, their companyfessions can be used against the appellants under s. 30 of the Evidence Act. But a companyfession cannot be regarded as a piece of satisfactory evidence because it is number made in the presence of the person or persons whom it incriminates and companysequently cannot be tested by cross-examination. A companyfession, therefore, is a much weaker type of evidence than the evidence of the approver which is number subject to such an infirmity. No doubt, by virtue of s. 30 they can, as pointed out in Bhuboni gahus case cit. sup. can be taken into companysideration by the Court and thereby treated as evidence upon which the companyrt may act, but s. 30 does number say that the companyfession amounts to proof. In Kashmira Singh State of Madhya Pradesh 1 this Court has approved of the decision in Bhuboni Sahus case and observed But cases may arise where the judge is number prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a companyviction. In such an event the judge may call in aid the companyfession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the companyfession he would number be prepared to accept. After making these observations this Court has pointed out the danger of using the testimony of one accomplice to companyroborate another because 1 1952 S. C. R. 526, 530. for one thing evidence companysisting of the companyfession of the accomplice cannot be tested by cross. examination. Relying upon illustration b to a. 114 of the Evidence Act it was companytended on behalf of the Crown in Bhuboni Sahus case 1 that where several participants in the alleged crime have in their separate companyfession implicated a particular person as being the culprit and there was numberprevious companycert amongst the companyfessing accused, there was numberreason to reject their companyfessions and that the evidence of the approver which, as here, was the primary evidence in the case should be regarded as being sufficiently companyroborated by such companyfessions. The argument was rejected by the Privy Council on several grounds. One of the grounds was that the companyfessing accused had been produced before the magistrate together for recording their companyfessions. Then they pointed out at p. 157 whilst appreciating that the companyncidence of a number of companyfessions of companyccused all implicating the particular accused, given independently, and without an opportunity of previous companysent , might be entitled to great weight their Lordships would nevertheless observe that companyrts should be slow to depart from the rule of prudence, based on long experience, which requires som independent evidence implicating the particular accused. The danger of acting on accomplice evidence is number merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution the real 1 1949 L.R. 76 I.A. 147. danger is that be is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence, and the story may be true in all its details as to eight of them, but untrue as to the other two, whose names have been introduced because they are enemies of the approver. It would appear from the record of these appeals that the companyfessions of the approver and Manjappa Gowda were recorded on the same day, i.e., March 27, 1958 by Mr. V. Revanna, Magistrate, First Class, Chikamagalur, while that of Manjappa Naika was recorded by another Magistrate on March 29, 1958. Mr. V. Revanna was examined as P. W. 41 in this case and he has stated in evidence that he received a requisition from the Deputy Superintendent of Police, Mr. Ramaswamy on March 22, 1958 for recording the companyfessional statements of Manjappa Gowda and the approver, Venkappa Naika and those persons were produced before him on that very day. He informed them that thereafter theY would be removed from the police custody and then he remanded them to the judicial look-up till March 24, 1958. He also told them that they were number bound to make any companyfessions. As, however, he was on casual leave from March 23, 1958 to March 26, 1958, they were produced before him on March 27, 1958. It would appear that these persons were in the police lockup since their arrest till March 22, 1958 and were actually brought together to the magistrates companyrt. There is numberhing to show that they were kept separate. In the circumstances there is numberguarantee that the accounts which they have given of the incident in their companyfessions were independent and without previous companycert. Therefore, apart from being a very weak type of evidence, there is an absence of intrinsic evidence in the companyfession of Manjappa Gowda which would go to provide an assurance that it is true in all its details. It may be that the general outline of the incident given by Manjappa Gowda is companyrect but insofar as it iraplicates the appellants before us there is numberguarantee about its truth. We cannot, therefore, regard that companyfession as affording companyroboration to the evidence of the approver. The defect which we have pointed out with respect to the companyfession of Manjappa Gowda does number appear to be present in Manjappa Naikas companyfession. He was first produced before a magistrate for recording his companyfession on March 27, 1958, and was then remanded by the Magistrate to judicial custody till March 29, 1958. It is possible that since this persons was arrested on March 15, 1958 by which date the approver and the other accused including Manjappa Gowda had presumably been arrested, they may have been in police custody together for some time. It is, however, number clear from. the record whether they were kept in custody at the same place. The circumstance appearing in the Privy Council case may , therefore, number be present in so far as he is companycerned. All the same we find that there is one grave infirmity in his companyfession. The record does number show that when Manjappa Naika was produced before a magistrate on March 27, 1958, and remanded by him to the judicial custody he was given due warning by the magistrate and told that he should reflect whether he should make any companyfession at all. In his examination as witness No. 44, the magistrate, Mr. K. Malle Gowda has stated as follows On March 27, 1958, the Deputy Superintendent of police produced before me AManjappa Naika and gave me the requisition, Ext. P. 23, for recording his statement under s. 164, Cr. P.C. On that, I remanded A-4 Manjappa Naika to the judicial custody till March 29, 1958. Accordingly, on March 29, 1958, he was produced before me in my Cour hall by the Sub-Jail authority at about 11.00 a.m. Thereafter he said that he asked the usual preliminary questions and then recorded the statement of Manjappa Naika. No doubt, it would appear that on March 29, 1958, the Magistrate asked Manjappa Naika whether he wanted time to think over the matter to which the latter replied write, presumably meaning thereby that he did number want time. That, however, is number sufficient companypliance with the requirements of law. It has been pointed out by this Court in Sarwan Singh v. The State of Punjab 1 that when accused person is produced by the investigating officer before the Magistrate for recording his companyfession, it is of the utmost importance that his mind should be companypletely free from any possible influence of the police and he must be send to Jail custody and given adequate time to companysider whether he should make a companyfession at all. It is true that here Manjappa Naika, after being produced by the Investigating officer before a Magistrate for recording his companyfession the latter remanded him to the judicial custody upto March 29, 1958, i. e., for two days but it was necessary for the magistrate to make it clear to Manjappa Naika that he was number bound to make the companyfession and that if he made the companyfession, it was likely to be used against him and that, therefore, he should reflect whether he should make any companyfession at all. It does number appear from the evidence of the Magistrate Mr. Malle Gowda that he brought these important matters to the numberice of Manjappa Naika while remanding him to the 1 1957 S.C.R. 953. judicial custody. In the circumstance, the companyfession is number one upon which a Court can properly act. That leaves for companysideration only one circumstance on which the High Court has relied and that is the failure of the appellant, Chinna Gowda, number to go to the house of T. Shiviah alias T. Shivaswamy, P. W. 75, for receiving a loan on February 13, 1958. It is said that he did number do so because he had with him the booty companylected from the house of the deceased Mariappa Gowda and, therefore, he numberlonger stood in need of raising the loan. There may be various reasons why Chinna Gowda did number keep his appointment but even assuming that he had companye by some money and that this happened as a result of the incident which took place on the night between February 12 and 13, 1958, it would number be legitimate to companyclude that he had himself participated in the murders. Thus we are left only with the evidence of the approver. As already pointed out, his evidence suffers from two infirmities on his own showing be is a man of bad character, and further in the companyrt of the companymitting magistrate he went back upon his companyfession before Mr. Revanna, Magistrate First Class. Again he is a person whose business is to manufacture illicit liquor. Thus, apart from participating in the heinous crimes which were perpetrated on the night in question, he has been leading a life of a lawbreaker. His evidence, standing by itself, cannot, therefore, carry companyviction. Indeed neither the Sessions Judge number the learned Judges of the High Court regarded his evidence as bring sufficient to justify companyviction of the various accused persons. In the circumstances we must hold that his evidence cannot safely be regarded as the sole basis for resting the companyviction of the two appellants before us.

O R D E R Arising out of SLP C No.5518 of 2006 Leave granted. This appeal is directed against the judgment and order dt.05.12.2005 passed by the High Court of Judicature at Patna in C.W.J.C.No.7505 of 2004 by which the High Court has affirmed the order passed by the Central Administrative Tribunal by which the appellants preference for the post of Train Clerk was number accepted. We have perused the impugned order.

CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 4734-35 of 1992. From the Judgment and Order dated 8.5.1992 of the Madhya Pradesh High Court in Misc. Petition Nos. 48 and 533 of 1992. Shanti Bhushan, N.C. Jain, S.K. Agnihotri and Ashok K. Singh for the Appellant. Kapil Sibal, N.S. Kale, A.P. Dhamija, S.K. Jain, Manmohan, S. Atreya, Pradeep Agarwal, Basant Bhai Mehta, Ravindra Srivastava, R.N. Srivastava, B.V. Desai and S.V. Deshpande for the Respondents. The Judgment of the Court was delivered by VERMA, J. The petitioner State of Madhya Pradesh in both these petitions seeks leave to appeal under Article 136 of the Constitution against the companymon judgment and order dated 8.5.1992 of the High Court of Madhya Pradesh in Miscellaneous Petition Nos. 481 of 1992 and 533 of 1992 under Article 226 of the Constitution. The High Court has allowed both these writ petitions. The material facts are these. In Miscellaneous Petition No. 3909 of 1987 tiled in public interest by Kailash Joshi, then Leader of the Opposition in Madhya Pradesh Vidhan Sabha and number a Cabinet Minister in Madhya Pradesh, relating to the affairs of the Churhat Childrens Welfare Society and the lottery companyducted by it, the M.P. High Court by its judgment dated 20.1.1989 issued a direction for setting up an independent high power agency to bold an inquiry into the affairs of the said Society of which respondent 1 Ajay Singh was one of the office bearers. In companypliance of that direction, the State Government passed a resolution on 24.2.1989 and also issued numberification of the same date having the effect of setting up a Commission of Inquiry companysisting of Justice S.T. Ramalingam, a Judge of the Madras High Court to investigate into the affairs of the said Society and the lottery companyducted by it. The resolution and numberification are as under - Bhopal, the 24th February, 1989 No. F. 1-3-89-l i -E.C. - Whereas the High Court of Madhya Pradesh in its order dated the 20th January 1989 in M.P. No. 3909/87 Kailash Joshi versus State of Madhya Pradesh and others has directed that an inquiry be made by an independent high power agency into the affairs of the Churhat Childrens Welfare Society and how the share of its profits derived from all or any other draws have been utilized and to take such action as may be required under the law against the said Society and its organizing agent and that the State Government is of the view that the said order of the High Court should be implemented and carried out and whereas the State Government is also satisfied that this is a definite matter of public importance which calls for an inquiry to be made, the State Government hereby appoints an independent high power agency presided over by Shri Justice S.T. Ramalingam, Judge of the Madras High Court. The Headquarters of the Agency shall be at Jabalpur, Madhya Pradesh. The terms of reference for inquiry by the aforesaid Agency shall be as under- How the affairs of the Churhat Children s Welfare Society are companyducted and how the share of the profit derived and the money companylected through lottery has been utilised ? What is the amount companylected draw-wise, by the agent and the Society and what is the tax liability as per the Madhya Pradesh lottery Niyantran Tatha Kar Adhiniyam, 1973 ? Whether any irregularities, illegalities and offences were companymitted in organizing the lottery, holding of draws of lottery, distribution of prizes, and in that event, the person responsible for the same Any other matter incidental or companynected with the above subjectmatter of enquiry. The Agency may companyplete its enquiry and submit its report to the State Government within a period of six months from the date of issue of this Notification. By order and in the name of the Governor of Madhya Pradesh, C. Shrivastava, Secy Bhopal, the 24th February, 1989 No. F.1-3-89-I i -E.C. - Whereas by Government of Madhya Pradesh Resolution dated the 24th February 1989 and Notification No. F.1-3-89- I i -E.C., dated the 24thFebruary 1989 an independent High Power Agency presided over by Shri S.T. Ramalingam, Judge of the Madras High Court has been set up to hold an inquiry into the affairs of the Churhat Childrens Welfare Society And whereas the State Government having regard to the nature of the inquiry to be made and other circumstances of the case is of the opinion that provisions companytained in sub-sections 2 to 5 of Section 5 of the Commissions of Inquiry Act, 1952, should be made applicable to the aforesaid Agency Now,therefore, in exercise of the powers companyferred by sub-section 1 of Section 5 of the Commissions of Inquiry Act, 1952, the State Government hereby directs that the provisions of sub-sections 2 to 5 of Section 5 of the said Act shall apply to the above described Agency. By order and in the name of the Governor of Madhya Pradesh, C. Shrivastava, Secy. According to the terms of the above numberification, the inquiry was to be companypleted within a period of six months from the date of issue of the numberification. As the inquiry companyld number be companypleted within that period, by a numberification dated 1.8.1990 the period for companypleting the inquiry was extended upto 22.8.1991 then by another numberification dated 16.8.1991 the period was extended upto 31.3.1992 and then by another numberification dated 27.3.1992 the period for companypleting the inquiry stands extended upto 31.3.1993. In the meantime, Justice S.T. Ramalingam became due to retire as a Judge of the Madras High Court on 30.6.1991 on attaining the age of superannuation and, therefore, he wrote a letter dated 19.3.1991 to the Chief Secretary of the State drawing attention to this fact and requesting that necessary modalities be worked out well in time for his companytinuance as Commission of Inquiry in the light of the guidelines issued by the Government of India for the benefits and emoluments payable to a Judge on his retirement in such a situation. Just Ramalingam mentioned in that letter some of the facilities he expected, to which he would number be entitled from the Government of Tamil Nadu on his retirement. The Chief Secretary R.P. Kapoor sent a reply to Justice Ramalingam by DO No. 504/CS/91 dated 9.4.1991 as under- My dear Honble Justice Ramalingam, Thank your very much for your letter No. 53 of 19th March, 1991. The issues raised in your letter regarding the tenure of the Commission and the terms and companyditions after your superannuation are under active companysideration of the Government and I will be in a position to inform your after a final view is taken in this case. In the meanwhile may I request that the proceedings may be companytinued so that the inquiry can be companypleted at the earliest possible. With very kind regards, Yours sincerely, Sd - P. Kapoor This letter of the Chief Secretary apart from promising to give an early reply also requested Justice Ramalingam to companytinue with the inquiry so that the same companyld be companypleted early. While the promised reply from the State Government Justice Ramalingam was awaited, the State Government, without further reference to Justice Ramalingam, issued a numberification dated 10.7.1991 as under- Bhopal, the 10th July, 1991 No. F.1-6-91-I- 8-Ka . - Whereas, an independent high power agency companyprising of a single member namely Justice S.T. Ramalingam, Judge of the Madras High Court was appointed under this Department Notification No. F.1-3-89-I i C., dated the 24th February 1989 And whereas Justice S.T. Ramalingam has retired as Judge of the Madras High Court, on 30th of June 1991 And whereas for companytinuing in the said agency after retirement Justice Shri S.T. Ramalingam has placed certain terms and companyditions which have number been found possible for the Government to accept. Now, therefore, in exercise of the powers companyferred by sub-section 3 of Section 3 of the Commissions of Inquiry Act, 1952 No. LX of 1952 , the State Government hereby appoint Justice Shri G.G. Sohani, retired Chief Justice, High Court of Patna Bihar as single member of the said agency in place of Justice Shri S.T. Ramalingam. Accordingly this Department Notification Nos. I F.1-3- 89-I i - E.C. dated the 24th February 1989, 2 F.1-3 89-1 i - E.C., dated the 24th February 1989 and F.1-3-89-I i - E.C. dated the 24th February 1989, shall stand amended to this extent. By order and in the name of the Governor of Madhya Pradesh K. Misra, Secy. Accordingly, by this numberification, the State Government replaced Justice S.T. Ramalingam with Justice G.G. Sohani, retired Chief Justice of Patna High Court as the sole member of the Commission of Inquiry. The appointment of Justice G. Sohani in place of Justice S.T. Ramalingam was challenged in the M.P. High Court by a writ petition - M.P. No. 2359 of 1991- by respondent No. 1 Ajay Singh. By an interim order dated 30.7.1991 passed by the High Court, the operation of the above numberification dated 10.7.1991 was stayed. During the pendency of that writ petition, Justice G. Sohani companyveyed to the State Government his disinclination to companytinue with the assignment and tendered his resignation. Consequently, the High Court dismissed that writ petition as infructuous on 5.9.1991. It was only thereafter that the Chief Secretary of the State Government sent a letter dated 12.9.1991 in companytinuation of his earlier letter dated 9.4.1991 to Justice Ramalingam which is as under This is in companytinuation to my earlier letter No. 504/CS/91 dated 9th April, 1991 regarding the arrangement for the Commission of Enquiry Churhat Children Welfare Society and Lottery , companysequent to your superannuation as a Judge of the Madras High Court. The State Government have companysidered your companymunications about the inconveniences you were facing in companying to Jabalpur for want of Air-link between Madras and Jabalpur. The State Government have also companysidered the terms and companyditions mentioned in your letter of 19th March, 1991. On careful companysideration of all aspects mentioned in your companymunications it has number been possible for the State Government to accept the terms and companyditions set out in your letter of 19th March for taking up the work of the above mentioned Enquiry Commission after your superannuation. The State Government had accordingly appointed Justice Mr. G.G. Sohani, retired Chief Justice of the Patna High Court to be the single Member of the Commission. I am, however, happy to companyvey the deep appreciation of the State Government for the services rendered by you in the Commission in spite of all the personal inconvenience it has caused. The Honble Chief Minister had made a general mention of it in the Vidhan Sabha on the 4th July, 1991. Delay in reply to your letter is regretted. It was caused because of the litigation arising out of the appointment of Justice Sohani which was since been decided. Wishing you and your family a very happy life after your superannuation. Yours sincerely, P. Kapoor The State Government thereafter issued another numberification dated 9.1.1992 as under- Bhopal, the 9th January 1992 No. F.1-6-91-I 8 Ka . - Whereas in exercise of the powers companyferred by sub-section 3 of Section 3 of the Commissions of Enquiry Act, 1952 No. LX of 1952 Justice Shri G.G. Sohani, retired Chief Justice, High Court of Patna Bihar was appointed as single member of an independent high power agency companystituted under this department numberification No. F.1-3-89-I i - C., dated 24th February 1998 in place of Justice Shri S.T. Ramalingam vide this department Notification No. F.1-6-91-I 8 Ka , dated the 10th July 1991 And whereas Justice Shri G.G. Sohani, retired Chief Justice, High Court of Patna Bihar has since withdrawn his companysent to work as single member of the said agency Now, therefore, in exercise of the powers companyferred by sub-section 3 of Section 3 of the Commissions of Enquiry Act, 1952 No.LX of 1952 , read with Section 21 of the General Clause Act, 1987 No. 10 of 1897 , the State Government hereby appoint Justice Shri Kamlakar Choubey, retired Judge of the Allahabad High Court as a single member of the said agency in place of Shri G.G. Sohani. Accordingly this department Notification Nos. 1 F.1 3-89- l i -E.C., dated 24th February, 1989, 2 F.1-3-89-I i E.C., dated 24th February, 1989, and 3 F.1-3-89-I i E.C., dated the 24th February, 1989, shall stand amended to this extent. By order and in the make of the Governor of Madhya Pradesh In this manner, the State Government after replacing Justice S.T. Ramalingam first by Justice G.G. Sohani, thereafter replaced him by Justice Kamlakar Choubey, a retired Judge of the Allahabad High Court, as the sole member of the Commission. It is unnecessary to refer to the terms and companyditions of appointment of Justice Kamlakar Choubey which were detailed in the General Administration Department Memo. dated 23.3.1991 and are referred in the High Court judgment, which include the facility of a Camp Office for him at Varanasi and other facilities of vehicle, telephone and staff etc. The appointment of Justice Kamlakar Choubey as the sole member companystituting the Commission of Inquiry in this manner resulting in the replacement of Justice S.T. Ramalingam initially appointed for the purpose and to writ petitions - P. Nos. 481 of 1992 and 533 of 1992 - for quashing the numberification dated 9.1.1992 appointing Justice Kamlakar Choubey. Challenge to the numberification dated 10.7.1991 issued earlier appointing, Justice G.G. Sohani is academic in view of Justice Sohani having resigned as indicated earlier. The remaining significance of the validity of the numberification dated 10.7.1991 appointing Justice G.G. Sohani relates only to the State Governments power to appoint another person in place of Justice S.T. Ramalingam in the above circumstances. The challenge of the writ petitioners before the High Court was that during the companytinuance as the single member of the Commission of Inquiry of Justice S.T. Ramalingam, there was numberpower in the State Government to replace him as the member of the Commission and, therefore, the appointment first of Justice G.G. Sohani and on his refusal, of Justice Kamlakar Choubey, being without any authority, was invalid. On this basis, the relief of quashing the numberification dated 9.1.1992 appointing Justice Kamlakar Choubey was sought. In substance, the argument was that there being numbervacancy in the office, the power under Section 3 3 of the Commissions of Inquiry Act, 1952, which is available only to fill any vacancy companyld number be invoked and there was numberother source of power available to the State Government for this purpose. The argument of the learned Advocate General on behalf of the State Government was that a vacancy had arisen in the membership of the Commission on account of Justice Ramalingas retirement from Madras High Court on 30.6.91, and there being his implied resignation indicated by his inclination to companytinue on the terms and companyditions suggested by him, which the State Government did number companysider feasible, the power of the State Government under Section 3 3 of the Commissions of Inquiry Act to fill the implied vacancy was available. It was also urged by the learned Advocate General that vacancy in the office of the single member of the Commission was also implied from the fact that the appointment of Justice S.T. Ramalingam as the Commission of Inquiry was also his status as a sitting Judge of the Madras High Court and, therefore, his retirement as a Judge resulted in creation of the vacancy. The learned Advocate General also placed reliance on Section 16 of the General Clauses Act, 1897, in aid of the State Governments power under Section 3 3 of the Commissions of Inquiry Act. Another submission of the learned Advocate General was that the State Government was the sole judge in this matter and was, therefore, companypetent to choose the person for making or companytinuing the inquiry in view of the power available under Section 3 of the Commissions of Inquiry Act lead with Section 16 of the General Clauses Act. The learned companynsel appearing on behalf of Kailash Joshi placed reliance on Section 3 2 of the Commission of Inquiry Act read with Section 14 of the General Clauses Act to support the State Governments action appointing Justice Kamlakar Choubey companytending that the State Government had power to reconstitute the Commission replacing Justice S.T. Ramalingam by another person. An argument challenging the locus standi of the writ petitioner was also faintly urged by companynsel for Kailash Joshi. The High Court allowed the writ petitions and quashed the numberification dated 9.1.1992 appointing Justice Kamlakar Choubey. It held that there was numbervacancy in the office of the single member of the Commission to empower the State Government to fill the vacancy under Section 3 3 of the Commissions of Inquiry Act. On a companystruction of the provisions of the Commissions of Inquiry Act and those of the General Clauses Act relied on in support of the rival companytentions, the High Court came to the companyclusion that there was neither any valid reason or ground number any power available in the State Government to replace Justice S.T. Ramalingam by another person as was purported to be done by First appointing Justice G.G. Sohani and then Justice Kamlakar Choubey, both of whom were also retired Judges. The objection to locus standi for the writ petitioners was also rejected. The relevant part of the directions made by the High Court is as under- As a result of the aforesaid discussion, the petition succeeds and is hereby allowed. The numberification dated 10.7.1991 Annexure-H and the companysequent numberification based thereon dated 9.1.1992 Annexure-M are hereby quashed. It is open to the State Government to propose to Honble Shri Justice S.T. Ramalingam the terms and companyditions or his companytinuance as a member of the Commission equivalent to, loss or more favourable than those offered and fixed for Honble Shri Justice Kamlakar Choubey. Thereafter depending on his reply the State Government may companytinue or discontinue his appointment or substitute another member in his place. It is also made clear that it would be open to Justice Ramalingam to accept the terms and companyditions offered by the State Government of Madhya Pradesh or to resign from the office, by taking a decision in that behalf early, so that the work of the Commission is number unduly hampered and it is companypleted well within the extended period i.e. before 31st March, 1993 Hence, these petitions for grant of special leave. Leave granted. Shri Shanti Bhushan, learned senior companynsel for the State of Madhya Pradesh, expressly gave up the argument advanced before the High Court of the implied resignation of Justice S.T. Ramalingam giving rise to a vacancy or any implied vacancy on retirement of Justice Ramalingam as a Judge of the Madras High Court to enable exercise of power under Section 3 3 of the Commissions of Inquiry Act for first appointing Justice G.G. Sohani and then Justice Kamlakar Choubey in place of Justice S.T. Ramalingam The case of the State of Madhya Pradesh in this Court was companyfined by Shri Shanti Bhushan to only one point. The only companytention of Shri Shanti Bhushan is that the aid of Section 21 of the General Clauses Act is available to the State Government for exercising its powers under the Commissions of Inquiry Act to add to, amend or vary the numberification issued initially appointing Justice S.T. Ramalingam as the sole member of the Commission which enables the State Government to reconstitute the Commission by replacing Justice S.T. Ramalingam with any other person in the circumstances of the case. He argued that it is in exercise of this power that the period fixed initially for companypletion of the inquiry companyld be amended since, to the extent the provisions in the Commissions of Inquiry Act are silent, recourse can be had to Section 21 of the General Clauses Act for making a suitable addition, amendment or variation of the initial numberification. According to learned companynsel, the power to rescind any numberification being provided in Section 7 of the Commissions of Inquiry Act, such a power in Section 21 of the General Clauses Act was number available, but number so the power given by Section 21 of the General Clauses Act to add to, amend or vary any numberification. Shri Shanti Bhushan also referred to Section 8-A of the Commissions of Inquiry Act as an indication to support his submission of the Governments power to reconstitute the Commission even during the availability of the person so appointed even though, he stated, Section 8-A is number the source of power for reconstitution of the Commission. In reply, Shri Kapil Sibal, learned senior companynsel for respondent No.1, submitted that the scheme of the Commissions of Inquiry Act does number permit invoking Section 21 of the General Clauses Act except for enlarge ment of the period for companypletion of the inquiry by amendment of the numberification only to that extent since the only situations in which reconstitution of the Commission can be made are provided in the Commissions of Inquiry Act itself and, therefore, the companytext rules out the applicability of Section 21 of the General Clauses Act for any such purpose. Shri Sibal also submitted that the companystruction suggested by Shri Shanti Bhushan is alien to the scheme of the Commissions of Inquiry Act. Shri Sibal added that Section 8- A of the Commissions of Inquiry Act was enacted for an entirely different purpose, to ensure companytinuity of the Commissions work and has numberhing to do with its reconstitution. Shri N.S. Kale, learned companynsel for Kailash Joshi, while supporting the submission of Shri Shanti Bhushan added that Sections 14 and 16 of the General Clauses Act are also available to support the impugned numberifications issued by the State Government. In the ultimate analysis, the companytroversy surviving before us on the rival companytentions is companysiderably narrowed. In substance, the only surviving companytroversy number is whether in the scheme of the Commissions of Inquiry Act, the power to add to, amend or vary any numberification given by Section 21 of the General Clauses Act is available to reconstitute a Commission of Inquiry companystituted under Section 3 of the Commissions of Inquiry Act by replacing the sole member appointed initially with another person during the availability of the sole member initially appointed. The validity of the aforesaid impugned numberifications dated 10.7.1991 appointing Justice G.G. Sohani and dated 9.1.1992 appointing Justice Kamlakar Choubey to replace Justice S.T. Ramalingam depends on the answer to this question which alone number survives for decision. A reference to the object and purpose of an enactment in the nature of the Commissions of Inquiry Act, 1952 would be worthwhile before proceeding to examine its scheme and the provisions therein. The object of the enactment, to the extent it is relevant, while companystruing the meaning of its provisions may be of assistance. The Commissions of Inquiry Act, 1955 is similar to and is modelled on the companyresponding English statute and provides this historical back ground for the Indian statute. The purpose of such an enactment is aptly summarised in the speech of Lord Salmon on Tribunals of Inquiry as under - In all companyntries, certainly in those which enjoy freedom of speech and a free Press, moments occur when allegations and rumours circulate causing a nation-wide crisis of companyfidence in the integrity of public life or about other matters of vital public importance. No doubt this rarely happens, but when it does it is essential that public companyfidence should be restored, for without it numberdemocracy can long survive. This companyfidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth. The truth may show that the evil exists, thus enabling it to he rooted out, or that there is numberfoundation is the rumours and allegations by which the public has been disturbed. In either case, companyfidence is restored. How, in such circumstances, can the truth best be established ? It is for the purpose of ascertaining the truth in such circumstances that the Commissions of Inquiry Act, 1952 has been enacted. While companystruing the provisions of the enactment, it would be useful to bear in mind its object if occasion arises for illumination of any grey areas with reference to the object of the enactment as a permissible aid to companystruction. The Commissions of Inquiry Act, 1952 was enacted to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers. Section 2 of the Act companytains definitions. Section 3 provides for appointment of a Commission of Inquiry. Subsection 1 of Section 3 lays down that a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance may be appointed by the appropriate Government it is of opinion that it is necessary so to do and shall make such an appointment if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by numberification in the Official Gazette. Sub-section 2 of Section 3 says that the Commission may companysist of one or more members appointed by the appropriate Government, and where the number is more than one, one of them may be appointed as the Chairman. Sub-section 3 of Section 3 enables the appropriate Government to fill any vacancy which may arise in the office of a member of the Commission whether companysisting of one or more than one member, at any stage of an inquiry. Sub-section 4 of Section 3 requires the appropriate Government to cause to be laid before each House of Parliament or, as the case may be, the Legislature of the State, the report, if any, of the Commission of Inquiry together with a memorandum of the action taken thereon, within a period of six months from the submission of the report by the Commission to the appropriate Government. Section 4 prescribes that the Commission shall have the powers or a civil companyrt while trying a suit under the Code of Civil Procedure in respect of the matters mentioned therein. Section 5 deals with the additional powers of the Commission. Section 5-A relates to the power of the Commission for companyducting investigation pertaining to inquiry. Section 5-B deals with the power of the Commission to appoint assessors. Section 6 provides for the manner of use of the statements made by persons to the Commission. Section 6-A provides that some persons are number obliged to disclose certain facts. Section 7 deals with the manner in which a Commission of Inquiry appointed Section 3 ceases to exist in case its companytinuance is unnecessary. It provides for a numberification in the Official Gazette by the appropriate Government specifying the date from which the Commission shall cease to exist if it is of the opinion that the companytinued existence of the Commission is unnecessary. Where a Commission is appointed in pursuance of a resolution passed by the Parliament or as the case may be, the Legislature of the State, then a resolution for the discontinuance of the Commission is also to be passed by it. Section 8-A provides that the inquiry is number to be interrupted by reason of vacancy or change in the companystitution of the Commission and it shall number be necessary for the Commission to companymence the inquiry afresh and the inquiry may be companytinued from the stage at which the change took place. Section 8-B prescribes that persons likely to be prejudicially affected by the inquiry must be heard. Section 8-C deals with the right of cross-examination and representation by legal practitioner of the appropriate Government, every person referred to in Section 8-B and, with the permission of the Commission, any other person whose evidence is recorded by the Commission. Sections 9, 10 and 10-A relate to ancillary matters while Section 12 companytains the rule making power of the appropriate Government. Section 11 provides that the Act is to apply to other inquirying authorities in certain cases and where the Government directs that the said provisions of this Act shall apply to that authority and issues such a numberification, that authority shall be deemed to be a Commission appointed under Section 3 for the purposes of this Act. Admittedly, it is by virtue of Section 11 that the Commission of Inquiry appointed in the present case is deemed to be a Commission appointed under Section 3 for the purposes of this Act because the Commission was companystituted by a resolution of the Government pursuant to the direction of the M.P. High Court in the writ petition filed in public interest by Kailash Joshi as indicated earlier. For the purposes of this case, the material provisions of the enactment are Sections 3, 7 and 8-A apart from Section 21 of the General Clauses Act, 1897 with reference to which the rival companytentions were made. These provisions are as under - The Commissions of Inquiry Act, 1952 Appointment of Commission.- 1 The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by numberification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may he specified in the numberifications and the companymission so appointed shall make the inquiry and perform the functions accordingly Provided that where any such Commission has been appointed to inquire into any matter- a by the Central Government, numberState Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning b by a State Government, the Central Government shall number appoint another Commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States. The Commission may companysist of one or more members appointed by the appropriate Government, and where the Commission companysists of more than one member one of them may be appointed as the Chairman thereof. The appropriate Government may, at any stage of an inquiry by the Commission fill any vacancy which may have arisen in the office of a member of the Commission whether companysisting of one or more than one member . The appropriate Government shall cause to be laid before each House of Parliament or, as the case may be, the Legislature of the State, the report, if any, of the Commission on the inquiry made by the Commission under sub-section 1 together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government. Commission to cease to exist when so numberified.- 1 The appropriate Government may, by numberification in the Official Gazette, declare that- a a Commission other than a Commission appointed in pursuance of a resolution passed by each House of Parliament or, as the case may be, the Legislature of the State shall cease to exist, if it is of opinion that the companytinued existence of the Commission is unnecesary b a Commission appointed in pursuance of a resolution passed by each House of Parliament or as the case may he, the Legislature of the State, shall cease to exist if a resolution for the discontinuance of the Commission is passed by each House of Parliament or, as the case may be, the Legislature of the State. Every numberification issued under sub-section 1 shall specify the date from which the Commission shall cease to exist and on the issue of such numberification, the Commission shall cease to exist with effect from the date specified therein. 8-A. Inquiry number to be interrupted by reason of vacancy or change in the companystitution of the Commission.- 1 Where the Commission companysists of two or more members, it may act numberwithstanding the absence of the Chairman or any other member or any vacancy among its members. Where during the companyrse of an inquiry before a Commission, a change has taken place in the companystitution of the Commission by reason of any vacancy having been filed or by any other reason, it shall number be necessary for the Commission to companymence the inquiry afresh and the inquiry may be companytinued from the stage at which the change took place. The General Clauses Act, 1897 Power to issue, to include power to add to, amend, vary or rescind, numberifications, orders, rules or bye-laws. Where, by any Central Act or Regulation, a power to issue numberifications, orders, rules or bye-laws is companyferred, then that power includes a power, exercisably in the like manner and subject to the like sanction and companyditions if any to and to, amend, vary or rescind any numberifications, orders, rule or byelaws so issued. It may be mentioned that sub-sections 3 and 4 of Section 3 and Section 8-A were inserted while Section 7 was substituted in the Commissions of Inquiry Act, 1952 by the Commissions of Inquiry Amendment Act, 1971 No.79 of 1971 as a result of the recommendations of the Law Commission of India made in paras 26 and 34 of its 24th Report. In para 26, the recommendation made was to amend Section 3 of the Act to provide expressly for the filling up of vacancy or for an increase in the number of members whenever the Government thinks it necessary or expedient to do so. In para 34 of the Report, the recommendation was to insert a new section 8-A in the light of the proposed amendment in Section 3 to clarify that it is number necessary for the Commission to recommence its inquiry if a change takes place in the companystitution of the Commission during the pendency of an inquiry. The legislative history of sub-section 3 of Section 3 and Section 8-A inserted simultaneously by amendment of the Act shows their interrelation and the object of enacting Section 8-A is to clarity that the inquiry is number required to recommence or be interrupted by reason of the filling of any vacancy or decrease in the number of members of the Commission. Section 8-A along with Sections 8-B and 8-C inserted simultaneously by amendment in the principal Act relate to the procedure of the Commission and were inserted to provide for specific situations while Section 8 companytains the general power of the Commission to regulate its own procedure. The real question for decision in the present case is Whether the appropriate Government after companystituting the Commission under Section 3 of the Act is empowered to reconstitute the Commission substituting another person as the sole member in place of the initial appointee? In substance, it is this power that the State Government claims to have exercised in the present case and is attempted to be justified by the argument advanced by Shri Shanti Bhushan to support the appointment first of Justice G.G. Sohani and then of Justice Kamlakar Choubey in place of Justice S.T. Ramalingam. To recapitulate, the argument of Shri Shanti Bhushan is that the power of reconstituting the Commission in this manner is available to the State Government under Section 21 of the General Clauses Act which can be invoked in aid of the power of the Government under Section 3 of the Commissions of Inquiry Act. Section 8-A of the Commissions of Inquiry Act is referred to by Shri Shanti Bhushan as an indication of the existence of this power in the State Government even though he does number rely on it as a source of this power. Shri Kapil Sibal, on the other hand, companytends that the scheme of the enactment shows that the appropriate Government cannot interfere with the working of the Commission after its companystitution except in the manner expressly provided in the Act and Section 7 is a clear indication that interference with the functioning of the Commission is number permissible in any other manner. Shri Sibal companytends that Section 21 of the General Clauses Act is number available to support the Governments action in the present case. Shri Shanti Bhushan companycedes that there is numberexpress provision in the Commissions of Inquiry Act, 1952 empowering the Government to replace or substitute the sole member of a Commission with another person during the companytinuance of the Commission, but he submits that this is implicit in the power to appoint a Commission and designate its personnel under sub-sections 1 and 2 of Section 3 of the Commissions of Inquiry Act read with the power to amend or vary any numberification available under Section 21 of the General Clauses Act. Shri Shanti Bhushan also companyceded that the aid of Section 21 of the General Clauses Act is available only if the companytext and the scheme of the Commissions of Inquiry Act so permits. He submitted that the Governments power to extend the time specified in the initial numberification for companypleting the work of the Commission is number to be found in any express provision in the Commissions of Inquiry Act, but is exercised by amendment of the initial numberification only under Section 21 of the General Clauses Act. According to Shri Shanti Bhushan, the appointment of a Commission is under subsection 1 and it is under sub-section 2 of Section 3 that the person companystituting the Commission is appointed even though it may be a simultaneous process. The replacement of the member initially appointed to companystitute the Commission, according to learned companynsel, is by reexercise of the power under sub-section 2 of Section 3. The submission is that the Commission appointed under subsection 1 of Section 3 companytinues while it may be reconstituted by replacement of the member which is done under sub-section 2 . In our opinion, the power of the Government to appoint a Commission of Inquiry and name the person or persons companystituting it is in sub-section 1 of Section 3 and is number an exercise divided between subsections 1 and 2 of Section 3 as suggested by Shri Shanti Bhushan. Sub-section 2 merely companyfers the power in the Government to appoint a Commission companysisting of one or more members and provides that if there be more than one member of the Commission, then one of them may be appointed Chairman of the Commission. lt is number as if sub-section 1 deals with mere appointment of a Commission of Inquiry without clothing it with its personnel and the power to appoint the member members thereof is to be found only in sub-section 2 . That apart, there is numberhing in any of these provisions to suggest that the Government has the power to reconstitute the Commission after its appointment by replacing the existing sole member with another person, Sub-section 3 deals expressly with the Governments power to fill any vacancy which may have arisen since the companystitution of the Commission. The question of replacement of a member appointed initially is obviously beyond its scope. Subsection 3 inserted by amendment in Section 3 of the Commissions of Inquiry Act, 1952 is a clear companytraindication to the companystruction suggested by Shri Shanti Bhushan of sub-sections 1 and 2 of Section 3 in the scheme of the Act. If the companystruction suggested by Shri Shanti Bhushan be companyrect, there was numberneed to make this amendment and insert sub-section 3 which is a clear indication of the limit and extent to which the power of reconstitution of the Commission can be exercised by the Government after the Commission has been companystituted. As the Law Commissions Report itself indicates, this amendment became necessary to provide expressly in the statute for the Governments power to till any vacancy after the initial companystitution Whatever may have been the position prior to insertion of sub-section 3 in Section 3, there can be numberdoubt that after its insertion, the scheme of the enactment excludes the power of reconstitution of the Commission in a manner number expressly provided therein. In view of subsection 3 , it is number permissible to companystrue sub-sections 1 and 2 of Section 3 in any other manner. If the scheme of the enactment gave such wide power to reconstitute a Commission after its initial companystitution and permitted replacement or substitution of the existing member of a Commission with another person sans sub-section 3 of Section 3, the power to fill any vacancy was number required to be provided separately ahat the Commission functions as an independent a gency free from any govern-mental companytrol after its companystitution. It follows that after appointment the tenure of members of the companymission should number be dependent on the will of the Government to secure their independence. A body number so independent is number likely to enjoy the requisite public companyfidence and may number attract men of quality and selfrespect. In such a situation the object of the enactment would be frustrated. 302-H. 303-A-C Minerva Mills Ltd. v, There Workers, 1954 S.C.R. 465 distinguished. The State of Bihar v. D. N. Ganguly.,1959 S.C.R. 1191, relied on. in Rangachari and Soshit Karamchari respectively reiterated in State of Punjab v. Hira Lal, 1971 3 SCR 267, and Comptroller and Auditor General of India, Gian Prakash K.S. Jagannathan Anr., 1986 2 SCR 17. In Rangachari it was held, The companydition precedent may refer either to numerical inadequacy of representation in the services or even to the qualitative inadequacy of representation.3 In the companytext the expression, adequately represented imports companysideration of size as well as values, numbers as well as the nature of appointments.4 But, inadequacy of representation is creative of jurisdiction only. It is number measure of backwardness. That is why less rigorous test or lesser marks and companypetition amongst the class of unequals at the point of entry has been approved both this Court and American companyrts. But a student admitted to a medical or engineering companylege is further number granted relaxation in passing the examinations. In fact this has been explained as valid basis in American decisions furnishing justification for racial admissions on lower percentage. Rationale appears to be that every-one irrespective of the source of entry being subjected to same test neither efficiency is effected number the equality is disturbed. After entry in service the class is one that of employees. If the social scar of backwardness is carried even, thereafter the entire object of equalisation stands frustrated. No further classification amongst employees would be justified as is number done amongst students. Constitutional, legal or moral basis for protective discrimination is redressing identifiable backward class for historical injustice. That is they are today, what they would number have been but for the victimisation. Remedytuting the Comm ission. The enactment, therefore, also provides in Section 7 the only situation in which the Government can rescind the numberification issued under Section 3 companystituting the Commission. To the extent to which express provision is made in the enactment, it is companymon ground, Section 21 of the General Clauses Act, 1897 cannot be invoked. These aspects have to be borne in mind while companysidering the tenability of the submission made by Shri Shanti Bhushan with the aid of Section 21 of the General Clauses Act. It is companymon ground before us that Section 21 of the General Clauses Act can be invoked only if, and to the extent, if any, the companytext and the scheme of the Commissions of Inquiry Act so permits. The general power in Section 21 of the General Clauses Act is to add to, amend, vary or rescind any numberification etc. In the companytext of reconstitution of the Commission, the power to fill any vacancy in the office of a member of the Commission is expressly provided in sub-section 3 of Section 3 of the Commission of Inquiry Act. Similarly, the power to discontinue the existence of the Commission when it becomes unnecessary can be exercised by issue of a numberification in accordance with Section 7 of the Act which results in rescinding the numberification issued under Section 3 companystituting the Commission. Thus, the power to rescind any numberification companyferred generally in Section 21 of the General Clauses Act is clearly inapplicable in the scheme to the Commissions of Inquiry Act which expressly provides for the exercise of this power in relation to a Commission companystituted under Section of the Act. The only material remaining general powers in Section 21 of the General Clauses Act are the power to amend or vary any numberification. The extent to which the companystitution of the Commission can be amended or varied by filling any vacancy in the office of a member as provided in the Commissions of Inquiry Act is also obviously excluded from the purview of Section 21 of the General Clauses Act which cannot be invoked for this purpose. The surviving question, therefore, is Whether there is power to reconstitute the Commission by replacement or substitution of the existing member, though number provided in the Commissions of Inquiry Act by invoking the residuary power to amend or vary any numberification under Section 21 of the General Clauses Act? In the first place, in a case like the present where the scheme of the Commissions of Inquiry Act does provide for amendment and variation of the numberification issued under Section 3 for the purpose of reconstitution of the Commission in the manner indicated, even that power to amend or vary any numberification by virtue of Section 21 of the General Clauses Act must be taken as excluded by clear implication in the sphere of reconstitution of the Commission. Moreover, the power to amend or vary cannot include the power to replace or substitute the existing companyposition of the Commission with an entirely new companyposition. Shri Shanti Bhushan submitted that the time specified in the initial numberification for companypleting the task of the Commission is enlarged by subsequent numberification and this is done in exercise of the general power available under the General Clauses Act to extend time. This submission does number support the argumentof learned companynsel that the general power under Section 21 of the General Clauses Act is also available to reconstitute the Commission by replacement or substitution of its sole member. The aid of Section 21 of the general Clauses Act for enlargement of time does number companyflict with the companytext or scheme of the Commissions of Inquiry Act. The companytext as well as the scheme of the Commissions of Inquiry Act, 1952 clearly indicate that Section 21 of the General Clauses Act, 1897 cannot be invoked to enlarge the Governments power to reconstitute the Commission companystituted under Section 3 of the Act in a manner other than that expressly provided in the Commissions of Inquiry Act. There being numberexpress power given by the Commissions of Inquiry Act to the appropriate Government to reconstitute the Commission of Inquiry companystituted under Section 3 of the Act by replacement or substitution of its sole member and the existence of any such power being negatived by clear implication, numbersuch power can be exercised by the appropriate Government. The scheme of the enactment is that the appropriate Government should have numbercontrol over the Commission after its companystitution under Section 3 of the Act except for the purpose of filling any vacancy which may have arisen in the office of a member of the Commission apart from winding up the Commission by issuance of a numberification under Section 7 of the Act if the companytinued existence of the Commission is companysidered unnecessary. The vacancy in the office of a member of the Commission may arise for several reasons, including resignation by the member, when the Governments power to fill the vacancy under Section 3 3 of the Act can be exercised. Even though a case of implied resignation creating an implied vacancy was set up by the State of Madhya Pradesh before the High Court, that stand was rightly abandoned before us by Shri Shanti Bhushan. We have numberdoubt that the rule of companystruction embodied in Section 21 of the General Clauses Act cannot apply to the provisions of the Commissions of Inquiry Act 1952 relating to reconstitution of a Commission companystituted thereunder since the subject-matter, companytext and effect of such provisions are inconsistent with such application. Moreover, the companystruction made by us best harmonises with the subject of the enactment and the object of the legislation. Restoring public companyfidence by companystituting a Commission of Inquiry to investigate into a definite matter of public importance is the purpose of such an exercise. It is, therefore, the prime need that the Commission functions as an independent agency free from any governmental companytrol after its companystitution. It follows that after appointment, the tenure of members of the companymission should number be dependent on the will of the Government, to secure their independence. A body number so independent is number likely to enjoy the requisite public companyfidence any may number attract men of quality and self-respect. In such a situation, the object of the enactment would be frustrated. This aspect suggests that the companystruction made by us, apart from harmonising the provisions of the statute, also promotes the object of the enactment while the companystruction suggested by the appellant frustrates both. Shri Shanti Bhushan placed reliance on the decision in Minerva Mills Ltd. v. Their Workers, 1-19541 S.C.R. 465. In that decision, the power of the appropriate Government under Section 7 of the Industrial Disputes Act, 1947 to companystitute an industrial tribunal for a fixed period of time and to companystitute a new tribunal on the expiry of that period to hear and dispose of references made to the previous tribunal which had number been disposed of by that tribunal was upheld. Shri Shanti Bhushan companytended that the observations made in that decision are number companyfined to the exercise of that power on the expiry of the tenure of the tribunal first companystituted. It was clearly indicated in that decision that when the life of the first tribunal automatically came to end by efflux of time, numberquestion of vacancy in the office really arose and, therefore, it was number a case falling under sub-clause 2 of Section 8 but the situation that arose fell within the ambit of Section 7. The observations made in that decision have to be read in the companytext of the facts of that case. That decision is clearly distinguishable. On the other hand, Shri Kapil Sibal placed reliance on The State of Bihar v. D.N. Ganguly Others, 1959 S.C.R. 1191. This decision also related to the reference of a dispute under the Industrial Disputes Act, 1947. It was pointed out that it was well settled that the rule of companystruction embodied in Section 21 of the General Clauses Act can apply to the G provisions of a statute only where the subject-matter, companytext, and effect of such provisions are in numberway inconsistent with such application . On this basis it was held that it did number apply to Section 10 1 of the Industrial Disputes Act. On a companystruction of Section 10 1 of the Industrial Disputes Act, 1947, it was held that it does number companyfer on the appropriate Government the power to cancel or supersede a reference made thereunder in respect of an industrial dispute pending adjudication by the tribunal companystituted for that purpose. Reliance placed on Section 21 of the General Clauses Act on behalf of the Government to invoke such a power by necessary implication was clearly negatived. The decision of this Court in Minerva Mills Ltd. supra was distinguished as we have already indicated. In our opinion, the ratio in D.N. Ganguly supra supports the view taken by us in the present case that Section 21 of the General Clauses Act cannot be invoked to support the impugned action of the State of Madhya Pradesh as companytended by Shri Shanti Bhushan. The companystruction suggested by Sri Shanti Bhushan is inconsistent with the provisions and the scheme of the Commissions of Inquiry Act, 1952 and must, therefore, be rejected. Admittedly, the power under Section 3 3 of the Commissions of Inquiry Act, 1952 was number available to the State of Madhya Pradesh in the facts of the present case to appoint any other person replacing Justice S.T. Ramalingam as the sole member of the Commission of Inquiry. The power under sub-sections 1 and 2 of Section 3 read with Section 21 of the General Clauses Act or even Sections 14 or 16 thereof was also number available for this purpose, for the reasons given earlier. Accordingly, the numberification dated 10.7.1991 appointing Justice G.G. Sohani and the numberification dated 9.1.1992 appointing Justice Kamlakar Choubey were both invalid. It is number unlikely that Justice G. Sohani may have resigned forming the same opinion when his appointment was challenged. However, the State of Madhya Pradesh did number choose to reflect and reconsider the legality of its action in spite of the resignation of Justice G.G. Sohani and it companytinued to move in the wrong direction by making another invalid appointment of Justice Kamlakar Choubey. Consequently, these appeals are dismissed and the impugned judgment of the High Court quashing the numberifications dated 10.7.1991 and 9.1.1992 is sustained for the aforesaid reasons given by us. The State of Madhya Pradesh shall, in view of the retirement of Justice S.T. Ramalingam as a Judge of the Madras High Court in the meanwhile, take necessary action to finalise his terms and companyditions in accordance with the guidelines issued by the Government of India in this behalf. Such action be taken promptly to avoid any undue delay in companypletion of the Commissions task. No companyts.

CIVIL APPEAL NO. 5158 OF 2007 Arising out of S.L.P. C No. 17859 of 2005 Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a Division Bench of the Andhra Pradesh High Court in Writ Appeal No.874 of 2005 dismissing the appeal filed by the appellants and thereby upholding the order passed by a learned Single Judge in Writ Petition No.16244 of 1999 and some other writ petitions. The present appeal relates to Writ Petition No.16244 of 1999 which was filed by the respondents. Factual position is almost undisputed. The respondents were appointed as Conductors w.e.f. 31.10.1996 on daily wages basis. Although the appointments of the respondents were on daily wages basis, their services were to be regularized in a phased manner as and when sanctioned vacancies arose. Since sanctioned vacancies arose and the respondents had companypleted 240 days of service, in terms of policy decision, their services were regularized w.e.f. 1.8.1987. After passage of more than a decade, respondents filed a writ petition i.e. Writ Petition C No.16244 of 1999 seeking regularization of their services from the date of initial appointment with all companysequential benefits. By order dated 18.08.2004, learned Single Judge disposed of the Writ Petition along with other cases allowing the writ petitions purportedly following the decision of this Court in Divisional Manager, APSRTC and Ors. P. Lakshmoji Rao and Ors. 2004 2 SCC 433 . Writ Appeals were filed before the High Court challenging the learned Single Judges order on the ground that on a misreading of this Courts judgment in Divisional Manager, APSRTC and Ors. case supra the writ petition was allowed. The Division Bench dismissed the writ appeal holding that the judgment of this Court in Divisional Manager, APSRTCs case supra applied to the facts of the case. In support of the appeal, learned companynsel for the appellant - Corporation submitted that both the learned Single Judge and the Division Bench did number appreciate the ratio of the decision in Divisional Manager, APSRTCs case supra in the proper perspective and have erroneously held that the decision applied to the case of the respondents. There is numberappearance on behalf of any of the respondents in spite of service of numberice. The learned Single Judge, while allowing the writ petition relied on paragraph-18 of the judgment of this Court. The same reads as follows In view of this peculiar situation and in order to avoid the anomalies that might otherwise ensue, while we hold that the respondent employees have failed to establish their legal right to get the status of regular employees right from the date of their initial appointment on daily-wage basis and the respective dates of regularization assigned to the respondents cannot be legally faulted, we are inclined to mould the relief in modification of the directions given in the judgments under appeal and direct as follows If any of the companyductors, junior to the respondents in the relevant senior list of the companycerned Division Region, have got the benefit of seniority and regularization OR are entitled to get the same by virtue of the judgments that have become final, then the respondents who are seniors to them, shall be given the same benefit on the same principle. It is to be numbered that the ratio of the decision in the said case was to the following effect It is difficult to companyprehend the ratio of the above decision. While purporting to clarify the order passed in the writ petition by the learned Single Judge, the Division Bench imported a totally alien companycept of companytinuous service within the meaning of Section 25-B of the I.D. Act which was for the special purpose of applying the provisions as to lay off and retrenchment companytained in Chapter V-A of the Act. Moreover, the order in the writ appeal is as vague as it companyld be. The expression date of companytinuous appointment makes numbersense. Even if it is taken that the said wording has been inaccurately used for the words companytinuous service, still, the direction is unintelligible. Continuous service within the meaning of Section 25-B for how long? Nothing has been specified. In this state of things, in W.P. No. 24263 of 1998, a learned Single Judge proceeded on the basis that as per the decision in W.A. No.705/1995, the employees were entitled to seek regularization with effect from the date of initial appointment, thus, making the clarification given by the Division Bench virtually otiose. In the light of the above discussion, we are of the view that the law laid down or the directions given in various writ petitions writ appeals are number legally sustainable for more than one reason. Firstly, wrong criterion based on Section 25-B of I.D. Act was applied in case after case. Secondly, the respondents and other similarly situated employees approached the Court under Article 226 long after their regularization, thereby unsettling the settled position. Thirdly, on the facts of these cases, it is evident that the services of the employees who were recruited as Conductors were regularized within a reasonable time. The respondent-employees were, therefore, treated fairly. No service rule or regularization or any other principle of law has been pressed into service by the respondents to claim regularization from an anterior date i.e. right from the date of their initial appointment as daily wage employees. Even a bare reading of paragraph-18 of the judgment on which reliance has been placed by the learned Single Judge and the Division Bench, it is clear that the relief was moulded to avoid anomalies and in view of the peculiar situation involved. This Court categorically held that the orders impugned in the appeals were number sustainable because the writ petitions were filed after a long lapse of time. Similar is the position here. The regularization was done w.e.f. 1.8.1987 and the writ petitions were filed in the year 1999. That being so and since in the writ petition without any explanation has been offered for the delayed approach, writ petition should have been dismissed on the ground of delay and laches. The learned Single Judge and the Division Bench clearly lost sight of this fact and as rightly companytended by learned companynsel for the appellant, misread the judgment of this Court to grant relief to the respondents.

Shah, J. The question involved in this appeal is whether import of Beef Tallow under Open General Licence hereinafter referred to as OGL was permissible after issue of Import Trade Control Public Notice No.29-ITC PN/81 on 5th June, 1981 clarifying that existing description Mutton Tallow in Entry No.44 shall be read as Tallow of any animal origin including Mutton Tallow? Appendix to Import Policy 1981-82 provides for list of items, import of which is canalised through public sector agencies. Item 44 provides that import of tallow of any animal origin including mutton tallow was canalised through State Trading Corporation of India. It is companytended by the respondent that OGL item was imported against licence dated 29.6.1981 which was an impress licence issued to M s B. Arun Kumar and Co., Bombay under the import-export policy for the period 1981-82 and that respondent entered into a companytract for import which was numberorised on 6.6.1981. Subsequently, the written companytract signed by the supplier was submitted to the New Bank of India for issuing letter of credit. However, as Bank refused the same and as on 3rd February 1983 numberice was issued by the supplier for cancellation of the companytract, Writ Petition No. 313 of 1983 was filed in the High Court of Delhi for various reliefs including the directions to the Bank to open letter of credit. On 30th March, 1983, letter of credit was actually opened. On 16th June, 1983 and Ist July, 1983, bills of entries for import of beef tallow were filed. It is to be stated that before respondent companyld enter into alleged companytract, it was clarified by the Import Trade Control Public Notice dated 5th June, 1981 that existing description mutton tallow under Entry 44 Appendix 8 is to be read as tallow of any animal origin including mutton tallow. Hence, on 15.7.1983, the Department issued show-cause numberice to the respondents. After receiving the reply and after hearing the respondents, the Collector of Customs, Bombay on 20th December, 1983 passed an order relevant part of which reads thus I order that the companysignments of beef tallow imported by M s Jain Shudh Vanaspati Ltd. for which they had presented the Bills of Entry listed in Annexure-I to this order, be companyfiscated under Section 111 d of the Customs Act, 1962 read with Section 3 2 of Imports and Exports Control Act, 1947 and Section 11 of the Customs Act, 1962. I, however, permit them to re-export the goods within fifteen days of the receipt of this order or such extended time as may be allowed by the adjudicating authority. I impose a penalty of Rs.5 Crores Rupees five crores only on M s Jain Shudh Vanaspati Ltd. under Section 112 of the Customs Act, 1962. Aggrieved by the said order, respondents preferred Appeal No.C/247/84-C before the Customs Excise and Gold Control Appellate Tribunal, New Delhi hereinafter referred to as the Tribunal . The Tribunal held that the question involved was companysidered in detail by it in its earlier judgment in Jain Sudh Vanaspati Ltd. v. Collector of Customs, Bombay 1990 29 ECR 321 Cegat SB-C . In the said decision, the Tribunal held that the right to import the goods under OGL is a statutory right and cannot be overruled by a public numberice and that the import of Beef Tallow which ceased to be an OGL item when it was canalised by the public numberice is governed by the Import Policy when the licence was issued and number by the public numberice. Public numberice has numberstatutory force under Section 3 of the Imports and Exports Control Act, 1947. The Tribunal also numbered that the said decision was challenged before this Court by filing SLP Nos.14605-06 and those SLPs were summarily dismissed by order dated 10th November, 1990. The Departments reference application against the said order was also dismissed. The Tribunal by its Final Order No.52/92-C dated 18th February, 1992 allowed the appeal and held that the import of beef tallow under OGL was number unlawful and, therefore, question of companyfiscation or redemption fine or imposing personal penalty under Section 112 of the Customs Act will number arise. That order is challenged by filing this appeal. We would first deal with the companytention raised by the learned senior companynsel Mr. Sanghi appearing on behalf of the respondent that once the imported article is re-exported as directed by the department, there is numberquestion of levying any penalty or redemption fine. In our view, this submission is without any substance because companyfiscation of goods and thereafter permitting the respondent to re-export the same would number mean that penalty under Section 112 of the Customs Act cannot be levied. The power to levy penalty under Section 112 for improper importation of goods is different from the power of companyfiscation of goods under Section 125 and giving an option to pay in lieu of companyfiscation such fine as authority thinks fit which are exercised under Section 125 of the Act. Relevant part of Section 112 reads thus Penalty for improper importation of goods, etc. Any person, a who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to companyfiscation under section 111, or abets the doing or omission of such an act, or b . shall be liable, in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty number exceeding the value of the goods or five thousand rupees. As against this, Section 125 empowers the companycerned officer to companyfiscate the goods which are illegally or improperly imported. After companyfiscation of the goods under the said section, the Collector of Customs is empowered to give an option to the companycerned party to get the same back after paying redemption fine. Section 125 1 reads thus Section 125. Option to pay fine in lieu of companyfiscation. 1 Whenever companyfiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods or, where such owner is number known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of companyfiscation such fine as the said officer thinks fit. From the aforesaid two sections, it is apparent that both operate in different fields, namely, one requires imposition of penalty and other provides for companyfiscation of improperly imported goods. Section 111 provides that goods brought from the place outside India are liable to companyfiscation if the goods are improperly imported as provided therein. In cases where goods are liable to companyfiscation, discretion is given to the authority to impose penalty. Further, Section 125 empowers companyfiscation of such goods and thereafter, companyfiscated goods vest in the Central Government. The Section further empowers the authority to give an option to the owner or the person from whom goods are seized to pay fine in lieu of such companyfiscation for return of the goods and the fine is also limited up to the market price of the goods. Therefore, levy of fine in lieu of companyfiscation is in addition to levy of penalty imposable under Section 112. Learned senior companynsel Mr. Sanghi next companytended that there was numberbar on import of beef tallow by the respondent. This submission is without any substance as law on this issue is settled. This Court has taken a companysistent view that once import of goods is canalised, it is number open to the holder of REP licence to import the goods which are canalised and that goods must be in companyformity with the Import Policy at the time of import. In Union of India v. M s Godrej Soaps Pvt. Ltd. and another 1986 3 SCR 771, it was held thus As the importation of canalised items directly by holders of additional licences are banned, it should number be companystrued to have been permitted by virtue of the order of this Court and the items sought to be imported do number companye within List 8 of Part 2 of Appendix 6 of the Import Policy of 1985-88 against additional licences. The goods in question which were sought for by the respondents fall under item 9 Part B of Appendix 5 which is the canalised item and such cannot be allowed to be imported against additional licence granted pursuant to the order of this Court dated 18th April, 1985. Further, in D. Navinachandra Co., Bombay v. Union of India 1987 2 SCR 989 this Court held thus The items had to pass through two tests, firstly, they should have been importable under the import policy 1978-79 and secondly they should also have been importable under the import policy 1985-88 Canalised items are those items which are ordinarily open to import only through a public sector agency The aforesaid aspect was further companysidered in M s Darshan Oils Pvt. Ltd. v. Union of India 1994 Supp. 5 SCR 278, wherein this Court held thus In D. Navinchandra Co., Bombay and anr. v. Union of India and others 1987 2 SCR 989, it was clearly held that the entitlement to import items which were canalised or number, is governed by the Import Policy prevalent at the time of Import. In the present case the import of a canalised item being made after amendment of the Policy by the public numberice dated 11.11.1983, in a manner number permitted by the amended Policy, the appellants cannot claim to avoid the logical companysequences of the import being made companytrary to the Import Policy prevailing at the time of import of the goods It is to be stated that the Tribunal relied upon its earlier decision by observing that the SLP against the said decision was dismissed by this Court summarily. But it is well settled law that in case where SLP is dismissed without assigning any reason, that order would number companystitute a binding precedent. Re Ajit Kumar Rath v. State of Orissa 1999 Supp. 4 SCR 302. For levying of the fine also, it is to be stated that before issuance of licence to the respondent on 29.6.1981 by Import Trade Control Public Notice, it was clarified that existing description mutton tallow in Entry No.44 shall be read as any tallow of any animal origin including mutton tallow. The bills of entry were tendered only on 16.6.1983 and Ist July, 1983 respectively and at that time Import - Export Policy of 1983-84 was in force which prohibited import of beef tallow. Therefore, respondent has imported a prohibited item. It is also to be stated that respondent was experienced Export House well versed in the policies and procedure in regard to the import and export of goods as numbered by this companyrt in other matter of respondent. Re Jain Export Ltd. and others v. Union of India 1993 Supp. 1 SCR 185. Apart from the aspect that respondent was well versed with import and export policy, section 3 of the Import Control Order 1955, inter alia specifically provides that numberperson shall import any goods of the description specified in Schedule I except under and in accordance with a licence. The Collector has also referred to the companyditions of licence and has observed that The first companydition on the reverse of the licence states that the import policy in relation to the goods and amendments made thereto up to and including the date of issue will be applicable to the goods. The licence was issued on 29.6.1981 on which date beef tallow was canalised. Further, in the Import Policy for April 1981 - March 1982 in paragraph 2, it has been specifically stated that any amendment to this policy which may become necessary in the companyrse of the year will be numberified by means of Public Notices issued by the Chief Controller of Imports and Exports, from time to time.

criminal appellate jurisdiction criminal appeal number 186 of 1966. appeal by special leave from the judgment and order dated numberember 4 1965 of the punjab high companyrt in criminal revision number 263 of 1965 and criminal misc. number. 224 of 1965. pritam singh safeer for the appellants. harbans singh and r.n. sachthey for the respondent. the judgment of the companyrt was delivered by ramaswami j. this appeal is brought by special leave from the judgment of the punjab high companyrt dated numberember 4. 1965 by which criminal revision petition number 263 of 1965 and criminal miscellaneous case number 224 of 1965 were dismissed. the case of the prosecution is that on october 19 1961 sub inspector banarasi lal of food and supplies department was present at smalkha barrier along with head companystable badan singh and others. the appellant malkiat singh then came driving truck number p.n.u. 967. babu singh was the cleaner of that truck. the truck carried 75 bags of paddy weighing about 140 maunds. as the export of paddy was contrary to law the sub inspector took into possession the truck as also the bags of paddy. it is alleged that the consignment of paddy was booked from lakerkotla on october 18 1961 by qimat rai on behalf of messrs sawan ram chiranji lal. the companysignee of the paddy was messrs devi dayal brij lal of delhi. it is alleged that qimat rai also gave a letter ex. p-3 addressed to the companysignee sawan ram and chiranji lal were partners of messrs. sawan ram chiranji lal and they were also prosecuted. in the trial court malkiat singh admitted that he was driving the truck which was loaded with 75 bags of paddy and the truck was intercepted at samalkha barrier. according to mallfiat singh he was given the paddy by the transport companypany at malerkotla for being transported to delhi. the transport company also gave him a letter assuring him that it was an authority for transporting the paddy. but it later transpired that it was a personal letter from qimat rai to the companymission agents at delhi and that it was number a letter of authority. babu singh admitted that he was sitting in the truck as a cleaner. the trial companyrt companyvicted all the accused persons but on appeal the additional sessions judge set aside the companyviction of sawan ram and chiranji lal and affirmed the companyviction of qimat rai and of the two appellants. the appellants took the matter in revision to the high companyrt but the revision petition was dismissed on numberember 4 1965. it is necessary at this stage to reproduce the relevant provisions of the essential companymodities act 1955 act 10 of 1955 . section 3 1 is to the following effect 3. 1 if the central government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential companymodity or for securing their equitable distribution and availability at fair prices it may by order provide for regulating or prohibiting the production supply and distribution thereof and trade and companymerce therein. section 7 states 7. 1 if any person companytravenes any order made under section 3-- a he shall be punishable-- in the ease of an order made with reference to clause h or clause i of sub- section 2 of that 665. section with imprisonment for a term which may extend to one year and shall also be liable to fine and in the case of any other order with imprisonment for a term which may extend to three years and shall also be liable to fine provided that if the companyrt is of opinion that a sentence of fine only will meet the ends of justice it may for reasons to be recorded refrain from imposing a sentence of imprisonment and b any property in respect of which the order has been companytravened or such part thereof as the companyrt may deem fit including in the case of an order relating to foodgrains any packages companyerings or receptacles in which they are found and any animal vehicle vessel or other companyveyance used in carrying foodgrains shall be forfeited to the government provided that if the companyrt is of opinion that it is number necessary to direct forfeiture in respect of the whole or as the case may be any part of the property or any packages companyerings or receptacles or any animal vehicle vessel or other companyveyance it may for reasons to be recorded refrain from doing so. 2 if any person to whom a direction is given under clause b of sub-section 4 of section 3 fails to companyply with the direction he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. by section 2 of punjab act number 34 of 1959 the punjab legislature added a new section s. 7-a in the central act number 10 of 1955 which reads as follows forfeiture of certain property used in the companymission of the offence.--whenever any offence relating to foodstuffs which is punishable under section 7 has been companymitted the companyrt shall direct that all the packages coverings or receptacles in which any property liable to be forfeited under the said section is found and all the animals vehicles vessels or other companyveyances used in carrying the said property shall be forfeited to the government. on january 3 1959 the central government promulgated the punjab paddy export companytrol order. 1959 in exercise of the powers companyferred by s. 3 of the essential commodities act. 1955. para 2 of this order states definitions.--in this order unless the companytext otherwise requires-- a export means to take or cause to be taken out of any place within the state of punjab to any place outside the state. b paddy means rice in husk state government means the government of the state of punjab. para 3 of the order provides as follows restrictions on export of paddy.--no person shall export or attempt to export or abet the export of paddy except under and in accordance with a permit issued by the state government or any officer authorised by the state government in this behalf provided that numberhing companytained herein shall apply to the export of paddy-- number exceeding five seers in weight by a bona fide traveler as part of his luggage or on government account or under and in accordance with military credit numberes. the question to be companysidered in this appeal is whether upon the facts found by the lower companyrts any offence has been companymitted by the appellants. it is number disputed that the truck carrying the paddy was stopped at samalkha barrier which is 32 miles from delhi. it is also number disputed that the delhi-punjab boundary was at the relevant point of time at about the 18th mile from delhi. it is therefore evident that there has been numberexport of paddy outside the state of punjab in this case. the truck with the loaded paddy was seized at samalkha well inside the punjab boundary. it follows therefore that there was numberexport of paddy within the meaning of para 2 a of the punjab paddy export companytrol order 1959. it was however argued on behalf of the respondent that there was an attempt on the part of the appellants to transport paddy to delhi and so there was an attempt to companymit the offence of export. in our opinion there is numbersubstance in this argument. on the facts found there was numberattempt on the part of the appellants to companymit the offence of export. it was merely a preparation on the part of the appellants and as a matter of law a preparation for companymitting an offence is different from attempt to companymit it. the preparation companysists in devising or arranging the means or measures necessary for the companymission of the offence. on the other hand an attempt to companymit the offence is a direct movement towards the companymission after preparations are made. in order that a person may be companyvicted of an attempt to companymit a crime he must be shown first to have had an intention to companymit the offence and secondly to have done an act which companystitutes the actus reus of a criminal attempt. the sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the companymission of a crime and those which are sufficiently proximate to it to amount to an attempt to companymit it. if a man buys a box of matches he cannumber be companyvicted of attempted arson however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. number can he be companyvicted of this offence if he approaches the stack with the matches in his pocket but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched he may be guilty of an attempt to burn it. sir james stephen in his digest of criminal law art. 50 defines an attempt as follows an act done with intent to companymit that crime and forming part of a series of acts which would companystitute its actual commission if it were number interrupted. the point at which such a series of acts begins cannumber be defined but depends upon the circumstances of each particular case. the test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does number proceed further in its progress the acts already done would be companypletely harmless. in the present case it is quite possible that the appellants may have been warned that they had numberlicence to carry the paddy and they may have changed their mind at any place between samalkha barrier and the delhi-punjab boundary and number have proceeded further in their journey. section 8 of the essential commodities act states that any person who attempts to contravene or abets a companytravention of any order made under section 3 shall be deemed to have companytravened that order. but there is numberprovision in the act which makes a preparation to companymit an offence punishable. it follows therefore that the appellants should number have been companyvicted under s. 7 of the essential companymodities act.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 126 of 1966. Appeal from the judgment and order dated November 29, and December 2, 1963 of the Gujarat High Court in Special Civil Application No. 641 of 1962. R. Chaudhuri, for the appellant. M. Hazarnavis, K. L. Hathi and S. P. Nayar, for the respondents. T. Desai and I. N. Shroff, for the intervener. The Judgment of the Court was delivered by Hegde, J.--The main companytroversy in this appeal by certificate is as to the companystitutional validity of S. 12A 4 of the Bombay Sales Tax 1946, to be hereinafter referred to as the Act. As in our judgment that provision is void, the same being violative of Art. 19 1 f of the Constitution, we have number thought it necessary to examine the other companytentions raised in the appeal. The facts material for the purpose of deciding the question formulated above, are these The appellants are dealers registered tinder the Act carrying on business in art silk, companyton and hand loom cloth. During the period January 26, 1950 to March 31, 1950, the appellants effected various sales outside the State of Bombay. As those sales were protected by Art. 286 1 a of the Constitution, they were outside the reach of the Act. But yet the sales tax officer assessed the turnover relating to those sales. The tax levied in respect of that turnover was Rs. 4,494/3/9. In appeal, the order of the sales tax officer was affirmed by the Assistant Collector of sales,tax. But the Additional Collector of sales tax in revision revised the levy to some extent and, ordered a refund of Rs. 2,238/0/6. That amount was paid to the assessees. Not being satisfied with the order of the Additional Collector of sales tax, the appellants took up the matter in revision to the Sales Tax Appellate Tribunal. But even before they moved the Tribunal in revision, the Additional Collector of sales tax by his letter dated May 17, 1958, informed the appellants that unless they furnished to the sales tax officer proof of their having refunded the amount paid to them in pursuance of his order to the purchasers within a period of three months from the date of that numberice, the same would be liable to be forfeited under s. 12A 4 The Tribunal by its order dated November 26, 1958, allowed the claim of the appellants in full and directed the refund of an additional sum of Rs. 2,256/2/6. During the period April 1, 1950 to March 31, 1951 the appellants effected various sales outside the State of Bombay. The turn, over relating to those sales was also brought to tax by the sales tax officer and in that companynection a tax of Rs. 23,806/3/6 was levied on the appellants. In appeal, the Assistant Collector of sale tax allowed the appellants claim in part and ordered a refund or. Rs. 12,154/15/- but at the same time he informed them that that amount would be forfeited to the State Government if number refunded to the purchasers from whom the same had been companylected. No being satisfied with the relief obtained, the appellants went up in revision to the Additional Collector of sales tax. That officer by his order dated November 1, 1958 granted further relief by ordering refund of an additional sum of Rs. 3,588/1/9. But the sales tax officer did number give effect to that order. As the Additional Collector did number accept the appellants claim in full, they went up in revision to the Tribunal. The Tribunal allowed their claim in full. The Revenue took up the matter in reference to the High Court but that reference was rejected. From the foregoing it is seen that in respect of the period April 1, 1950 to March 31, 1951- the appellants are entitled to get a refund of Rs. 23,806/3/6. Despite the aforementioned orders, the sales tax officer did number pay the amounts ordered to be refunded. On the other hand, he threatened to take steps to forfeit the same by having recourse to s. 12A 4 . On June 27, 1962, the sales tax officer called upon the assessees to remain present in their office on July 2, 1962 with particulars of the amount companylected by them by way of sales tax from the purchasers in other States during the period January 26, 1950 to March 31, 1951. At that stage, the appellants approached the High Court of Gujarat by special civil application No. 641 of 1962 under Art. 226 of the Constitution. In that application, they prayed for several reliefs, the most important of which was to direct the respondents to companyply with the orders of refund and to refrain from taking any action against them under s. 12A 4 . The High Court dismissed that application. Hence. this appeal. The Act provides for the levy of tax on the sale of goods in the then State of Bombay. It came into force on March 8, 1946. Any person who carries on business of selling or supplying goods in the State of Bombay whether for companymission, remuneration or otherwise, is defined as a dealer in s. 2 c . Section 8 and s. 8 a of the Act provide for the registration of dealers. As mentioned earlier the appellants are registered dealers. Under s. 2 k of the Act, the assessment year is the financial year. Section 5 prescribes the incidence of taxation. Section 10 prescribes the returns to be made by the dealers. The assessment is made under s. 11. Section 11 a provides for taxing the turnover escaping assessment. Section 12 provides for the payment and recovery of tax. Section 12A is the one with which we are companycerned in this appeal. It reads No person shall companylect any amount by way of tax under this Act in respect of sales or supplies of any goods which are declared, from time to time, under section 7 as sales or supplies on which the tax is number payable. No person selling or supplying any goods shall companylect from the purchaser any amount by way of sales tax unless he is a registered dealer and is liable to pay tax under this Act in respect of such sale or supply Provided that this sub-section shall number apply in cases where a person is required to companylect such amount of tax separately in order to companyply with the companyditions and restrictions imposed on him under the provisions of any law for the time being in force. Every registered dealer whose gross turnover exceeds Rs. 60,000 a year shall issue a bill or cash memorandum signed and dated by him or his servant, manager or agent to the purchaser in respect of the goods sold or supplied by him showing the particulars of the goods and the price at which the goods are sold or supplied shall keep the companynterfoil or duplicate of such bill or cash memorandum duly signed and dated and preserve it for a period of number less than two years from such date. If any person companylects any amount by way of tax in companytravention of the provisions of sub-section 1 or 2 or if any registered dealer companylects any amount by way of tax in excess of the amount payable by him under this Act, the amounts so companylected shall, without prejudice to any prosecution that may be instituted against such person or dealer for an offence under this Act be forfeited to the State Government and such person or dealer, as the case may be, shall within the prescribed period, pay such amount into a Government treasury and in default of such payment, the amount shall be recovered as an arrear of land revenue. In view of Art. 286 1 a of the Constitution as it stood at the relevant time, the appellants sales outside the State of Bombay were number exigible to tax. Therefore if the appellants had companylected any amount from their purchasers in respect of those sales by way of tax they had undoubtedly companytravened sub-s. 2 of s. 12A. Sub-s. 4 of s. 12A provides for the forfeiture to State government any amount companylected by a dealer by way of tax in excess of the amount payable by him under the Act. For the purpose of deciding the point in issue it is number necessary to find out the scope of the expression companylects any amount by way of tax in s. 12A 4 . We shall assume, without deciding, the companylection made by the appellants, if any, was by way of tax. It was number companytended number companyld it have been companytended that the impugned provision is a taxation measure bringing to tax directly or indirectly the sales effected outside the State of Bombay. In Abdul Quadar and Co. v. Sales Tax Officer, Hyderabad, 1 interpreting s. 11 2 of, the Hyderabad General Sales Tax Act 1952, a provision somewhat similar to, the impugned provision, this Court observed that legislation under Entry 54 of List II of the Constitution similar to Entry 48 of List 11 of the Government of India Act, 1935, the entry with which we are companycerned in this case proceeds on the basis that the amount companycerned is number a tax exigible under the law made under that entry, but 1 1964 6 S.C.R. 867. even so lays down that though it is number exigible under the law, it shall be paid over to the government merely because some dealers by mistake or otherwise have companylected it as tax hence, it is difficult to see how such a provision can be ancillary or incidental to the companylection of tax legitimately due under a law made under the relevant taxing entry. Therein it was held that it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under Entry 54 of List 11 when it made the provisions of s. 11 2 , for on the basis of the provision the amount that was companylected by way of tax was number exigible as tax under the law. According to the Revenue s. 12A 4 is a penal provision and it provides for the imposition of penalty on those who companytravene s. 12A 1 and 2 . It was said on its behalf that power to enact such a provision is incidental to the power to tax sales. In support of that companytention reliance was placed on the decision of the Gujarat High Court in Ram Gopal v. Sales Tax Officer, Surat and Another 1 . That decision upheld the validity of s. 12A 4 . If that decision lays down the law companyrectly, then the appellants are out of companyrt. But we think that the said decision cannot be sustained. We shall number go into the question whether from the language of the impugned provision it is possible to hold that it is a penal provision. For our present purpose we shall assume it to be so. We shall also assume that the legislature had legislative companypetence to enact that provision. But the question is whether it is violative of Art. 19 1 f which guarantees the freedom to hold property. Prima facie the appellants are entitled to get the amount ordered to be refunded to them. It is for the respondents to establish that the same is liable to be forfeited. Even according to the respondents that amount can be forfeited only as a measure of penalty for the companytravention of s. 12A 1 and 2 . Under our jurisprudence numberone can be penalised without a proper enquiry. Penalising a person without an enquiry is abhorrent to our sense of justice. It is a violation of the principles of natural justice, which we value so much. The impugned provision which provides for the forfeiture of the amount in the hands of the dealers, does number lay down any procedure for ascertaining whether in fact the dealer companycerned bad companylected any amount by way of tax from his purchasers outside the State and if so what that amount is. Neither s. 12A 4 number any rule framed under the Act companytemplates any enquiry much less a reasonable enquiry in which the person companyplained of can plead and prove his case or satisfy the authorities that their assumptions are either wholly or partly wrong. The Act is silent as to the machinery and procedure to be followed in determining the question as to whether there has been a companytravention of ss. 12A 1 and 2 , and if so, to what extent. 1 16 S.T.C. 1005. L P N 7SCI-8 Hence it would be open to the department to evolve all the requisite machinery and procedure which means that the whole thing, from the beginning to end, is treated as of a purely administrative character, companypletely ignoring the legal position. The imposition of a penalty on a person is at least of a quasi-judicial character. The impugned provision does number companycern itself only with the amount admittedly companylected by a person in companytravention of sub ss. 1 and 2 of s. 12A. Even if there is any dispute either as to the facturn of companylection or as to the amount companylected, such a case also companyes within the scope of s. 12A 4 . Yet that section does number provide for any enquiry on disputed questions of facts or law. The forfeiture provided for in S. 12A 4 prima facie infringes Art. 19 1 f . Therefore it is for the respondents to satisfy the Court that the impugned provision is a reasonable restriction imposed in the interest of the general public. Section 12A 4 does number companytemplate the making of any order. As mentioned earlier, that section prescribes that if any registered dealer companylects any amount by way of tax in excess of the amount payable by him under the Act, the amount so companylected shall, without prejudice to any prosecution that may be instituted against him for an offence under the Act, be forfeited to the State government and he shall within the prescribed period pay such amount into a government treasury and in default of such payment the amount shall be recovered as arrears of land revenue. This section does number companytemplate adjudication. Nor does it, provide for making any order. Hence, it is doubtful whether any appeal can be filed against a demand made under that section under s. 21. The question whether appellants in the instant case had been afforded a reasonable opportunity to establish their case or riot is besides the point. The companystitutional validity of a provision has to be determined on companystruing it reasonably. If it passes the test of reasonableness, the possibility of powers companyferred being improperly used, is numberground for pronouncing it as invalid, and companyversely if the same properly interpreted and tested in the light of the requirements set out in Part III of the Constitution, does number pass the test, it cannot be pronounced valid merely because it is being administered in the manner which might number companyflict with the companystitutional requirements. On a reasonable interpretation of the impugned provision, we have numberdoubt that the power companyferred under S. 12A 4 is unguided, uncanalised and uncontrolled. It is an arbitrary power. As held by this Court in Dr. N.B. Khare v. State of Delhi 1 , whether the restrictions imposed by a. legislative enactment upon a fundamental right guaranteed by Art. 19 1 are reasonable within the meaning of Art. 19 5 would depend as much on the procedural portion of the law as the substantive part of it. 1 1950 S.C.R. 519. Rao 1 wherein it was observed that in companysidering the reasonable That view was reiterated by this Court in State of Madras v. V. G. ness of laws imposing restrictions on fundamental rights both the substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness. This Court has taken that view companysistently.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 2097 of 1968. Appeal from the judgment and order dated August 11, 1965 of the Delhi High Court in C.W. No. 197-D of 1965. Jagdiish Swarup, Solicitor-General of India, S. N. Prasad, B. D. Sharma and S. P. Nayar, for the appellant. C. Manchanda, S. Balakrishnan and P. N. Lekhi, for the respondent. The Judgment of the Court was delivered by Grover, J. This is an appeal by certificate from a judgement of the Punjab High Court by which the petition under Art. 226 of the Constitution filed by the respondent was allowed and the ban imposed on the sale of a news weekly called The Indian Observer by the licensees of the Railway Book Stalls throughout the companyntry under directions issued by the appellant was set aside. According to the writ petition, the petitioner was the owner and publisher of a weekly newspaper known as The Indian Observer which had a wide sale in India, its weekly circulation being approximately 1,35,000 companyies. Till March 1965 the .aforesaid news weekly was being sold at all the railway stations which were managed and were under the administrative companytrol of the Railway Board. It was alleged that the policy of the news weekly was to publish a companystructive criticism and fair companyment in public interest on the working of different departments of the Government and to suggest remedial measures., In,some of the companyies of the news Weekly, certain matters regarding the maladministration of the Railway had been published. Reference was made in particular to the issue of 11th September, 1964 in which allegations were made about the black-marketing in deluxe train tickets. It was stated to have attained the magnitude of a big racket operating in the companyntry resulting in lot of gain by companyrupt means to the Railway staff. It is unnecessary to give the details but according to the allegations made in the news weekly, the Railway staff was companyrupt and the reasons for the companyruption were also given. Other companyments were made which reflected adversely on the working of the Indian Railways. According to the petitioner all these statements and resolutions annoyed the Railway Authorities and on 22nd September, 1964, the Circulation Manager of the Petitioner companypany received a letter from M s Gulab Singh P Ltd., one of the licensees, of the Railway Board for sale of printed matters intimating that the Northern Railways administration had banned the sale, of The Indian Observer on the Railway Book Stalls. Subsequently, when the petitioner took up the matter with the authorities companycerned, the General Manager, Northern Railways, wrote to him informing him that temporary permission had been given to the railway companytractors of printed matters to sell the news weekly subject to proper review of that paper and final orders which would be given later. The General Manager asked the petitioner to supply companyies of 12 old issues which was done. Finally, the petitioner was informed by means of a letter dated the 16th March 1965 that the sale of the weekly The Indian Observer companyld number be permitted on the railway stations. In the return which was filed by the Joint Director, Traffic General , Railway Board, it was number denied that the news weekly The Indian Observer was being sold at the, railway stations by the licensed companytractors. It was asserted that the petitioner had been publishing sexy and obscene literature Lind the licensees had been raising objections on this score. The articles published in the Pews weekly were companysidered to be of low taste, and it was decided that it would number be in public interest to allow its sale at the railway Platforms by the, licencees. The allegations made in the petition about the statements relating to companyruption and maladministration in the Railways which had been published in some of the issues of the news weekly was number denied. It was, however. maintained that the Railway Board had taken the action number because of the publication of those articles but because of the sexy and obscene literature of low taste which was being published in the news weekly. Before, the High Court, s. 28 of the Indian Railways Act 1890, hereinafter called the Act, and the relevant sub-clauses of clause 742 of the Indian Railway Code were pressed into service for challenging the ban which had been imposed on the sale of the news weekly. The High Court was of the view that the petitioner before it had cited and produced instances of publications which were freely on sale on the bookstalls on the railway platforms to show that the material which was sought to be excluded or grounds on obscenity, was hardly distinguishable from the other popular magazines of foreign and Indian origin. Reliance was placed on the provisions of clause 742 of the Indian Railway Code which established that a publication to attract the ban imposed by the Railway Board must have been previously prohibited by the Government. As the Railway Board was number authorised to exclude any publication from saleon its own determination that it was obscene, it was held that the order which was made by that Board was without authority. The ban had hit the writ petitioner who had been made the object of discriminatory treatment. Consequently, the restriction imposed on the sale of The Indian Observer was quashed. Section 120A of the Act which was inserted for the first time by Act No. 13 of 1959 provides that if a person canvasses for any custom or hawks or exposes for sale any article whatsoever, in any railway carriage or upon any part of a railway except under and in accordance with the terms and companyditions of a licence by the railway administration shall be punishable with fine which may extend to two hundred and fifty rupees. He can also be removed from the carriage or any part of the railway by any railway servant so authorised. It appears that prior to the insertion of this section, rules hadbeen framed under s. 47 1 of the Act. Rule 17 ofPart 11 of the Rules laid down that numberperson companyld canvass for any custom or hawk or expose for sale any article whatsoever, on any train, station, platform or premises without a licence granted by the railway administration. Clause. I of Rule 17 has been incorporated in s. 120A 1 of the Act in 1959, that Clause having been deleted from the rule. The bookstalls on the railway platforms where books, manazines and newspapers are sold, belong to the licencees who have entered into an agreement with the President of India. It is number disputed that according to the usual clauses in these agreements of licence, the ale of newspapers shall number be stopped by the licencees at any time save when it is due to causes beyond the, companytrol of the licensee. The learned Solicitor General produced a sample agreement in companyrt which was number objected to by the companynsel for the respondent. According to clause 3 b thereof the licensor can reserve to himself the right to require the licencee to sell specified books or types of books and periodicals and the licencee was bound to companyply with such requirements. . Under clause 5 the licensor had the right of prohibiting the sale, or exhibition of any publication of an obscene or scurrilous nature and of any publication to which good, sufficient, and reasonable objections companyld be shown and the decision of the licensor was to be final and binding oil the licensee. The Railway Board which is the appellant before us has issued certain instructions and laid down essential principles and policy directions which have been Published in the form of a Code called the Indian Railway Code for the Traffic Department Commercial . It may be Mentioned that the Solicitor General himself maintained that all those were of a mandatory nature and it is stated in the preface to the Code. Chapter VII, Part A of this Code deals with catering and vending services. Part B relates to book-stalls, sale of newspapers and periodicals on railway platforms. Clause 742 to the extent it is material is reproduced below - The sale of obscene books and pictures and publications prohibited by the Government should be strictly banned. The companytractors should provide equal opportunity to all the popular newspapers for in their stalls on the same terms. A list of popular newspapers and magazines should be drawn up by the Railway Administration in companysultation with the Zonal Railway Bookstall Advisory Committee. The main argument of the learned Solicitor General on behalf of the appellant is that sale of books on railway platforms or in railway carriages is a matter which is regulated by the terms of the agreement of licence between the bookstall companytractors and the railway authorities and it is open to the appropriate authority to stop the sale of any newspaper or publication which was companysidered obscene or scurrilous or to which sufficient and reasonable objections companyld be shown. In the letter of the Railway Board dated March 26, 1965 it was stated that it had companye to the Boards, numberice that the Indian Observer generally companytained articles written in very low taste bordering oh obscenity. It was further .stated that after a perusal of few Copies of the said weekly the Board had companye to the companyclusion that it was number fit for sale at railway stations. It was desired that the book stall companytractors should be, instructed to stop with immediate effect the sale of the Indian Observer from their bookstalls as well as on the platforms as also along train side and in station premises. According to the Solicitor General the action taken by the Railway Board was perfectly companypetent and was taken in accordance with the terms of the licence granted to the book stall companytractors. It is urged that ,the respondent had numberright or locus standi to insist on or ask for the sale of the Indian observer oil the platforms etc., which are the private property of the railway and where the sale .of any publication companyld only be subject to such terms and companyditions as obtained between the licensor or licencee. Before the High Court and before us the main companyplaint of the present respondent is based On an infraction of Article 14 of the Constitution and it has been asserted that the news weekly Indian Observer was singled out for discriminatory treatment inasmuch as publications companytaining similar material were number prohibited from sale by the Railway Board on the book-stalls at the platforms and in the trains etc. The High Court had found as a fact that publications which were freely on sale on the bookstalls to whom licences had been given were such that they were hardly distinguishable from the Indian Observer on the ground news weekly inquestion had been sold on railway platforms since 1963 number wasit suggested that the Railway Board had ever accorded individual sanction for the sale of every single book and publication at the book stalls of the Railway Administration. Now in the Indian Railway Code the policy or the principle laid down in categorical terms in sub-clause viii of Clause 742 is that the companytractor should provide equal opportunity to all the popular newspapers for sale in their stalls on the same terms. This was subject to certain companyditions, one of which was that the sale of obscene books and pictures and publications prohibited by the Government should be strictly banned. vide sub-clause v . The letter written by the railway itself to which a reference has been made, does number impose the ban on the ground that the Indian Observer is an obscene publication which has been prohibited by the Government. In that letter there was first a recital of what had companye to the Boards numberice i.e. that the articles written in the said news weekly were in very low taste bordering on obscenity. There was numberfinding or decision that it was a publication which was obscene. The companyclusion of the Board simply was that the Indian Observer was number fit for sale at the Railway stations. The other companydition laid down in sub-clause that its sale had been prohibited by the government was neither mentioned number has it been shown that any such order had been made by the government prohibiting the sale of the Indian Observer on the ground that it is obscene. The learned Solicitor General companytends that the word Government in subclause v means the Railway Board because according to s. 2 of the Indian Railway Board Act 1905, Central Government may by numberification in the official gazette invest the Railway Board either absolutely or subject to companyditions with all or any of the powers or functions of the Central Government under the Act. Our attention has number been drawn to any provision in the Act or the rules framed thereunder by which the Central Government can prohibit the sale of any obscene book, picture or publication on. It appears that the aforesaid clause. has reference to a prohibition unposed by the Central Government under some enactments other than the Act. It is number claimed that the Railway Board companyld impose a ban under any other enactment. Nor has it been suggested that the Central Government had passed any order prohibiting the sale of the Indian Observer under any statutory provision. Even on the assumption that the Board companyld make such an order as is companytemplated by sub-clause v of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was numberhere stated that the publication of the news weekly was being banned on the ground of obscenity. It is thus apparent that the High Court was fully justified in taking the view that the Indian Observer had been sin-led out for being banned and this clearly amounted to a discriminatory,treatment. The question that has next to be resolved is whether Art. 14 companyld be invoked by the respondent in the present case. It has number been and indeed cannot be disputed that the Railway Board will fall within the definition of State as given in Art. 12 of the Constitution. The learned Solicitor General has relied on Railway, Board v. Niranjan Singh 1 . It was laid down that there was numberfundamental right under Art. 19 1 for anyone to hold meetings in government premises. The Northern Railway was the owner of the Premises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them. We are unable to appreciate how the ratio of that decision companyld be applied to the present case. The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office companypounds, Railway platforms may be the property 1 .1969 3 S.C.R. 548. of the railways, but it cannot be disputed that every bona fide traveller or every other member of the public who, buys a platform ticket can have access to the railway platforms. It is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station platform or any part of the railway premises any person who is number a bona fide passenger and who does number have any business companynected with the railway or any person who having arrived at a station by train and having numberbusiness companynected with the railway refuses to leave the railway premises when required to do so. But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule. There is numberanalogy between a station platform and a government office. Even otherwise the crux of the matter is that the respondent is number seeking to us the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there. All that the respondent says is that the railway administration has itself directed that the bookstall companytractors who were its licensees should provide equal opportunity to all the popular newspapers for sale in their stalls. These very companytractors are number being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have numberlegal basis or justification. The administrative act or order of the Railway Board can, therefore, be challenged under Art. 14. The respondent is number asking for the enforcement of any such fundamental right as would companye within the rule laid down in the previous decision of this Court. In other words what the present respondent is challenging is the order of the Railway Board which led to the stoppage of the sale of the news was weekly on the Railway platforms etc.If that order is discriminatory and, cannot be justified on anyof the well known grounds. the respondent can challenge it in a Petition under Art.226 of the Constitution as violative of Art.14. There is numberparallel between the facts of this case and the decision relied upon by the learned Solicitor General. We companycur with the view of the High Court that the impugned order of the Railway Board was discriminatory. No proper or valid grounds have been shown for sustaining the discrimination made. A certain amount of discussion took place before us with regard to the applicability of s. 28 of the Act which companytains prohibition against under preference being shown by the Railway Administration in any respect whatsoever. Tn the view that we have taken about the applicability of Art. 14 we do number companysider it necessary to decide whether the respondent companyld take advantage of the provisions of that section. Lastly, we may refer to a preliminary objection which was raised on behalf of the respondent to the certificate which was granted by the High Court. It has been urged that the certificate is defective because in the order dated July 7, 1968 granting it the Bench has virtually given a decision as if an appeal was being entertained against the judgment dated August 11, 1965 by which the writ petition was allowed. It does appear that Deshpande J., who delivered the order of the Division Bench granting the certificate has made certain observations which seem to suggest that the previous decision was incorrect. Although such an order will number per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while companysidering the question of granting certificate for appeal to this Court ought number to be critical of or express any dissent from the judgment appealed against because it has numbersuch jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied.

N. Ray, J. The question for our companysideration in this appeal is whether the expression Building in Section 3 i of the U.P. Urban Buildings Regulations of Letting, Rent and Eviction Act, 1972 the Act means only the super-structure or it includes the land underneath it also. It is number necessary to go into the history of litigation between the parties, suffice it to say that the building in dispute was let out to the Sales Tax Department of the Government of Uttar Pradesh by one Devender Singh. His application under proviso to Section 21 8 of the Act for enhancement of rent was allowed by the Rent Control and Eviction Officer and he enhanced the rend to the building from Rs. 300 to Rs. 5,622.87 per month. The appeal filed by the State of Uttar Pradesh before the Additional District and Sessions Judge, Saharanpur was dismissed. The State of Uttar Pradesh challenged the order of the companyrts below before the High Court by way of a writ petition under Article 226 of the Constitution of India which was destined by the High Court by its Order dated February 7, 1991. This appeal by way of special leave is against the Judgment of the High Court. Section 3 i and the proviso to Section 21 8 of the Act are reproduced hereunder Section 3 i building means a residential or number-residential roofed structure and includesany land including any garden , garages and out houses, appurtenant to such building any furniture supplied by the landlord for use in such building any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof. Section 21 8 provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefore to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy, and the rent so enhanced shall be payable from the companymencement of the month of tenancy following the date of the application. Provided further that a similar application for further enhancement may be made after the expiration of five years from the date of the last of enhancement. The Rent Control and Eviction Officer and the Appellate Authority under the Act determined the value of the super-structure and also of the land separately and thereafter adding both the values, the monthly rent payable by the appellant was determined. The High Court upheld the reasoning and findings of the companyrts below. Learned Counsel for the appellant has companytended that the plain meaning of the expression building under Section 3 i of the Act shows that it only me and the super-structure companystructed on the land and does number include the land underneath the building. According to him the inclusive definition of building is indicative of the fact that the expression building does number include the land underneath it. Mr. R.K. Jain, learned Counsel appearing for the respondent-landlord has companytended that the definition of Building under Section 3 i of the Act on the face of it is clear and according to him and inclusive part of the definition is only pertaining to the land appurtenant to the building and number the land underneath the building. He plausibly companytended that the land under the super-structure apparently companyes within the expression building itself. Even otherwise there can be numberjustification for excluding the land underneath the building while companystruing the definition under Section 3 i of the Act as there cannot be any super-structure without the land underneath it. Mr. Jain has, therefore, companytended that within the definition of the building companyprising roofed structure, the land on which the building stands automatically companyes in and numbervaluation of such roofed structure can be companypleted without reference to the value of the land on which the roofed structure stands. Mr. Jain has relied on the Judgment of this Court in Dr. Kishore Chand Kapoor and Ors. v. Dharam Pal Kapoor and Ors. . In Kapoors case valuation of a building in the proceedings under Partition Act came for companysideration before this Court. This Court upheld the value of the building which was determined by including the value of the land underneath the super-structure. In the said case this Court relied on an earlier Judgment in State of Kerala v. P.P. Hassan Koya AIR 1968 SC 1201 wherein while determining companypensation under the Land Acquisition Act it was held that the value of the land and the break-up value of the building cannot be determined separately. It was further held that land and the building companystitute one unit and the value of the entire unit has to be determined with all its advantages and potentialities. After giving our anxious companysideration to the facts and circumstances of the case, it appears to us that in the definition of building under Section 3 i of the Act, there is numberexpress exclusion of the value of the land on which the building stands. In the absence of such express exclusion, the land being intrinsically inseparable from the building standing thereon, the value of the land and the value of the structure or building should be taken into companysideration and in our view the land on which the building stands together with the building or structure companystitute one companyposite unit. It may be indicated that the value of two similar buildings or structure standing on similar parcel of land may differ substantially on account of locational advantage of the site in question. The difference of valuation of land because of such locational advantage creeps into the ultimate valuation of the building or structure making one building more valuable than the other although from the structural point of view, both the buildings are identical. In the aforesaid circumstances, the determination of valuation of the building by taking into companysideration the value of the land in addition to the value of the structure , does number appear to be illegal and improper. In any case, the definition of building under the Act clearly shows that the building thereunder means roof structure including the land underneath the said structure. Inclusive part of the definition only relate to the land appurtenant to such building and number to the land underneath the roof structure.

Gajendragadkar, J. This group of companysolidated appeals has companye before this Court with a certificate granted by the High Court at Bombay, under Art. 133 of the Constitution the certificate shows that according to the High Court the amount of the value of the subject-matter in dispute involved in these companysolidated appeals exceeds Rs. 20,000 and they raise a substantial question of law. The 385 appellants companycerned in these 20 appeals are employees in the Watch Ward Department of various textile mills in Ahmedabad. They had filed 20 applications between July 22, 1953, to October 6, 1953, before the authority under the Payment of Wages Act hereinafter called the authority and had claimed overtime wages for the period between January, 1951, to December, 1951, and June-July, 1953. These applications were accompanied by another set of 20 applications in which they prayed for companydonation of delay made in putting forward the claim for overtime wages under the second proviso to s. 15 2 of the Payment of Wages Act 4 of 1936 hereinafter called the Act . The authority companysidered the case made out by the appellants for companydonation of delay and held that they had failed to prove sufficient cause for number making their applications within the prescribed period. The appellants then moved the High Court at Bombay under Arts. 226 and 227 of the Constitution. These applications also failed and were dismissed. Then the appellants moved the High Court for a certificate, and a certificate was granted to them. It is with this certificate that they have companye to this Court. It is necessary at first to set out the circumstances under which the appellants have made their claim for overtime wages in their present applications. Section 59 of the Factories Act, 1948 63 of 1948 which came into force on September 23, 1948, provides for the payment of extra wages for overtime to persons who are workers as defined by s. 2 1 of the Act. It is companymon ground that the appellants are number workers under the said section and so they did number claim any of the benefits companyferred on workers by the provisions of the Factories Act. The Bombay Shops and Establishments Act, 1948 Bombay Act 79 of 1948 came into force in the State of Bombay on January 11 1949 and it is number denied that the appellants are employees under s. 2 6 of the said Act. S. 70 of this Act provides for the application of s. 59 of the Factories Act to all employees working in factories like the appellants, but the words used in s. 70 are number very clear and the effect of its provisions was a matter of doubt which was finally resolved by the decision of this Court in the case of Shri B. P. Hira, Works Manager, Central Railway, Parel, Bombay, etc. v. Shri C. M. Pradhan etc., , on May 8, 1959. It is because the true effect of this section was number appreciated by the appellants that the present difficulty has arisen. Not knowing that they were entitled to the benefits of the relevant provisions of the Factories Act by virtue of s. 70 of the Bombay Shops and Establishments Act, the representative union of the appellants raised an industrial dispute by a numberice on September 20, 1949, claiming some of the amenities provided by the Factories Act Ref. IC No. 192 of 1949 . While delivering its award on this reference on November 25 1950, the Full Bench of the Industrial Tribunal observed that the employees did number appear to be companyered by the Factories Act and on that basis it awarded to them a nine-hour day, two holidays per month and a limited provision for overtime wages. It is clear that this award proceeded on the assumption that the relevant provisions of the Factories Act did number apply to the appellants. On May 2, 1952, the appellate decision delivered by the Chief Judge of the Court of Small Causes, in the case of Ruby Mills Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521, however, companystrued s. 70 of the Bombay Shops and Establishments Act and held that the employees falling under the provisions of the said section were entitled to claim overtime wages under s. 59 of the Factories Act. In other words, this decision for the first time properly companystrued s. 70 of the Bombay Act and held that the said section in substance extended the provisions of s. 59 of the Factories Act to the employees companyered by s. 70. When the appellants union companye to know about this decision it moved the Minister of Labour, Bombay, on October 30, 1952, and requested him to persuade the Ahmedabad mills to extend the benefits of the Factories Act to their Watch Ward staff on November 1, 1952, the union received a reply from the Minister stating that he had drawn the attention of the factories Department to the judgment in the Ruby Mills case Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521. Thereafter the secretary of the union requested the Chief Inspector of Factories, Ahmedabad, to enforce the above decision in Ahmedabad. Subsequent companyrespondence followed between the union, the factory authorities and the Mill Owners Association, Ahmedabad. In May, 1953, the Mill Owners Association accepted the position that the appellants were companyered by the Factories Act and in July, 1953, the appellants were for the first time paid for overtime at the rate provided under the Factories Act. Some mills paid the overtime wages with effect from January, 1953, some from May, 1953, and some from July, 1953. In August, 1953, the secretary of the new union, which the appellants had jointed in the meanwhile, wrote to the employers requesting them to pay overtime wages for the prior period and when this request did number receive a sympathetic response from the employers the present applications were filed before the authority making a claim for overtime wages for the period already mentioned. In their applications for the companydonation of delay the appellants alleged that they had bona fide believed that neither the Factories Act number the Bombay Shops and Establishments Act applied to the Watch ward staff, and so they had moved the industrial companyrt for redress of their grievances. The step thus taken by the appellants shows that in asserting their rights they were exercising due diligence and care. The employers companyceded the position that the appellants were entitled to claim overtime wages only in May, 1953, and then the appellants tried to negotiate with them for the payment of the overtime wages claimed in the present applications. It is on these grounds that the appellants prayed that the delay made in presenting the claim should be companydoned. This claim was resisted by the employers on two grounds it was urged by them that the main ground alleged by the appellants for claiming companydonation of delay amounted to a plea of ignorance of law and that ignorance of law cannot be a sufficient cause under the relevant proviso. It was also companytended that numbersufficient or satisfactory reasons had been given by the appellants for the delay made by them in filing the present applications subsequent to May 2, 1952, when s. 70 of the Bombay Act had been authoritatively companysidered by the appellate companyrt in the case of Ruby Mills Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521 and so the employers argued that the appellants were number entitled to ask for companydonation of delay. The authority upheld both these companytentions raised by the employers. It companysidered the judicial decisions cited before it and held that even if the appellants were ignorant of the rights that they got under s. 70 of the Bombay Act such ignorance of law cannot be said to be a sufficient case. It also examined the companyduct of the appellant subsequent to the date of the decision in the Ruby Mills case Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521 and held that the said companyduct did number justify the appellants claim that they were acting bona fide and with due diligence in asserting their rights. In dealing with this latter question the authority observed that the appellants did number specify when they came to know about the decision in the case of Ruby Mills Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521, and numbersatisfactory explanation had been given by them as to why, immediately after companying to know of the said decision, they did number move the authority. The authority also examined the companyrespondence that passed between the parties after the decision in the Ruby Mills case Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521 and found that the appellants were even then claiming the benefit of the Factories Act prospectively and number retrospectively. In the absence of any affidavit explaining the companyduct of the appellants after May 2, 1952, when the Ruby Mills case Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521 was decided, the authority came to the companyclusion that the inaction of the appellants was number at all satisfactorily explained, and so numbersufficient cause companyld be said to have been shown by them to justify the companydonation of delay. As a result of these two findings the authority refused to excuse delay, and so the claim made by the appellants for overtime wages for a period beyond the prescribed period of limitation was rejected. When this decision was challenged by the appellants before the High Court by their petitions under Arts. 226 and 227 apparently the only point urged before the High Court was that the authority was in error in holding that an error of law cannot be a sufficient cause under the relevant proviso to s. 15 2 of the Act. It does number appear that the attention of the High Court was drawn to the second finding made by the authority, and so, that aspect of the matter has number been companysidered in the judgment of the High Court. Dealing with the point raised before it the High Court agreed with the view taken by the authority, and held that ignorance of law cannot companystitute a sufficient cause. Ignorance of law, observed the High Court, is ignorance of the rights of a party which the law companyfers upon him, whereas mistake of law is mistake in establishing those rights by, for instance, going to one forum instead of another. The High Court has observed that in cases where there is a mistake of law companyrts have almost uniformly taken the view that the time taken up by asserting the rights in a wrong companyrt or a wrong forum should be excused, and in companying to this companyclusion they had been largely influenced by the principle underlying s. 14 of the Limitation Act. That is how the petitions filed by the appellants in the High Court were dismissed. Before dealing with the merits of the companytentions raised by Mr. Phadke in the present appeals it is necessary to read the relevant provisions of s. 15 of the Act. S. 15 1 provides for the appointment of the authority to hear and decide for any specified area all claims arising out of deductions from the wages, or delay in payment of the wages of persons employed or paid in that area. Sub-s. 2 provides, inter alia, that if any deduction has been made from the wages of an employed person companytrary to the provisions of the Act or any payment of wages has been delayed, such person may apply to such authority for a direction under sub-s. 3 . It is under this sub-section that the present applications have been made. The first proviso to sub-s. 2 prescribes limitation, and says that every such application shall be presented within six months from the date on which the cause of action accrued. It is the second proviso with which we are directly companycerned in the present appeals. This proviso lays down further that any application may be admitted after the said period of six months when the applicant satisfies the authority that he had sufficient case for number making the application within such period. The principal question which has been agitated in the High Court and before the authority was whether ignorance of law can be said to companystitute sufficient cause within the meaning of this proviso. Mr. Phadke companytends that this proviso companyfers wide discretion on the authority and Legislature has deliberately number circumscribed or regulated in any manner the exercise of the said discretion. He companycedes that it has to be exercised judicially but he protests against the imposition of any right rule, or, as he called it, self-denying ordinance, by which the authority would invariably refuse to teat ignorance of law as falling within the expression sufficient case under the proviso. According to him there is numberrule in India that ignorance of law cannot be a sufficient cause for explaining the delay made in instituting legal proceedings and he strongly urged that even if such a rule applies to ordinary legal proceedings it would be singularly inappropriate in the interpretation of the provisions of welfare legislation like the Act. In support of this argument Mr. Phadke has invited our attention to the decision of the House of Lords in Hyman v. Rose 1912 A.C. 623, as well as the decision of this Court in Namdeo Lokman Lodhi v. Narmadabai 1953 S.C.R. 1009 1027. Both these decisions dealt with the question of the discretion vested in the companyrts to grant relief against forfeiture, and Mr. Phadkes argument was that the relevant words used in that behalf in companyferring discretion on the companyrts have been companystrued in their widest denotation and are similar to those in the proviso with which we are companycerned and so the same companystruction should be adopted in interpreting it. He has also strongly relied on the decision of the Privy Council in Brij Indar Singh v. Kanshi Ram 1917 L.R. 44 I.A. 218, where their Lordships have companysidered the trend of judicial decisions in India which interpreted s. 5 of the Indian Limitation Act, 1908, and have observed that there appeared to be a uniform practice in the Indian High Courts under which a mistake in law was in proper cases treated as sufficient cause for excusing delay. Now if the matter were entirely open, said Lord Dunedin in delivering the judgment of the Board, in as much as a mere mistake in law is number per se sufficient reason for asking the companyrt to exercise its discretion under s. 5, there would be a good deal to be said in argument in favour of making the rule universal . . . . . But the matter is number open. To interfere with a rule which after all is only a rule of procedure which has been laid down as a general rule by Full Benches in all the Courts of India, and acted on for many years, would cause great inconvenience, and their Lordships do number propose so to interfere. Mr. Phadke argues that this decision is an authority for the proposition that in a proper case a mistake of law or ignorance of law may companystitute a sufficient cause under s. 5 of the Limitation Act, and according to him, the same principle should apply in companystruing the proviso in question. We do number propose to deal with this argument because, as we will presently point out, we have companye to the companyclusion that the appellants would fail even if we were to uphold Mr. Phadkes present companytention. As we have already numbericed the authority has held against the appellants on two grounds, one that ignorance of law cannot be a sufficient cause, and second that, even if it was, in fact the appellants had number explained the delay made by them in making the present applications after they knew of the decision in the case of Ruby Mills Vide Bombay Labour Gazette, dated January 1953, Vol. 32, No. 5, p. 521 on May 2, 1952. This latter companyclusion is a finding on a question of fact and its propriety or validity companyld number have been challenged before the High Court and cannot be questioned before us in the present appeals. Unfortunately it appears that the attention of the learned judges of the High Court was number drawn to this finding otherwise they would have companysidered this aspect of the matter before they proceeded to deal with the interesting question of law raised before them. Mr. Phadke fairly companyceded that he companyld number effectively challenge the finding of the authority that numbersatisfactory explanations had been given for the delay in question. He, however, argued that the said finding would number effect the final decision because, according to him, once it is held that ignorance of law can be a sufficient cause, then the period until May 2, 1952, would be companyered by the appellants ignorance about the true scope and effect of the provisions of s. 70 of the Bombay Shops and Establishments Act. This position may be companyceded. It is true that the true effect of the said section was number appreciated by either the workmen and their union or the employers or the authorities under the Factories Act, or even by the industrial companyrts. But the question still remains whether the appellants are number required to explain the delay made by them after May 2, 1952. Mr. Phadke says that it is number necessary for his clients to explain this delay. His argument is that what the relevant proviso really means is that if sufficient cause has been shown for number making the application within the prescribed period of six months then the application can be made any time thereafter. The statutory bar created by the prescribed limitation is removed once it is shown that there was sufficient cause for number making the application within the said period and once that bar is removed, there is numberfurther question of limitation and the applicant cannot be called upon to explain the subsequent delay. That is the effect of the argument urged by Mr. Phadke on the relevant proviso. This argument is substantially founded on the decision of the Court of Appeal in Lingley v. Thomas Firth Sons Ltd. 1921 1 K.B. 655. In that case the companyrt had to companystrue the words reasonable cause used in proviso b to s. 2, sub-s. 1 of the Workmens Compensation Act, 1906 6 Edw. 7, C. 58 . S. 2 1 prescribes a limitation of six months for the making of a claim for companypensation arising out of an accident caused to the workmen falling within its purview, and proviso b lays down that the failure to make a claim within the period above specified shall number be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mistake, absence from the United Kingdom or other reasonable cause. In the case of Lingley 1921 1 K.B. 655 the claim had been admittedly made beyond the period of six months and within a companyple of months thereafter an application for arbitration for companypensation was filed. The County Court Judge was satisfied that there was reasonable cause within s. 2, sub-s. 1 for the applicants failure to make a claim within the prescribed period, and he held that when once the bar to the proceedings had been surmounted by the establishment of reasonable cause, there was numberfurther limited period within which the claim must be made. Accordingly, companypensation was awarded to the applicant. The employer appealed against this award and his appeal was allowed. The Court of Appeal reversed the finding of the County Court Judge on the first point, and held that for the applicants failure to make the claim within six months she had number shown any reasonable cause, and that naturally led to the reversal of the award. Even so, in companysidering the question of the companystruction of s. 2 1 , proviso b , the learned judges observed that if sufficient cause had been established by the applicant she would have succeeded in obtaining companypensation, because they agreed that, if the bar imposed by the statutory period of six months prescribed for the making of the claim had been raised, the claim of the applicant companyld number be subjected to any further bar of limitation. It is this view on which Mr. Phadke relies, and he companytends that the same principle should be applied in companystruing the relevant proviso to s. 15 of the Act. In this companynection Mr. Phadke has invited our attention to three Indian decisions - J. Hogan v. Gafur Ramzan XXXV B.L.R. 1143, Salamat v. Agent, East Indian Railway 1938 I.L.R. 2 Cal. 52, 58, and Kamarhatti Co. Ltd. v. Abdul Samad 1952 I L.L.J. 490, 492. These decisions were companycerned with claims for companypensation made under s. 10 of the Workmens Compensation Act VIII of 1923 , the first two under s. 10 as it stood prior to its amendment in 1938, and the last one under the said section as it was amended in 1938. It may be added that all the three decisions purpose to adopt the view taken by the Court of Appeal in the case of Lingley 1921 1 K.B. 655. Now in order to appreciate the effect of the decision in the case of Lingley 1921 1 K.B. 655, it would be relevant to emphasize that in that case the Court of Appeal was really giving effect to an earlier decision of the House of Lords in Powell v. The Main Colliery Co. Ltd. 1900 A.C. 366, and, as the judgments of all the learned judges indicate, they were following the said decision with some reluctance. In the case of Powell 1900 A.C. 366, the House of Lords had held that the claim for companypensation specified in s. 2 1 of the English Act does number mean initiation of the proceedings before the tribunal by which companypensation is to be assessed, but a numberice of claim of companypensation sent to the workmans employer. In other words, according to that decision, the limitation of six months prescribed by s. 2 1 applies to the numberice of claim which a workman has to give to his employer it had numberreference to the proceedings which a workman would institute before the tribunal claiming to recover the said companypensation. The numberice of claim had to be served on the employer within six months after the date of the accident, and after serving such numberice, proceedings had to be initiated before the tribunal claiming companypensation. The effect of the two English decisions, therefore, is that if a workman shows sufficient cause for the delay made by him in serving the numberice of claim on the employer there was numberquestion of calling upon him to explain any further delay made by him in instituting the proceedings before the tribunal for the recovery of companypensation. In fact, for the institution of such proceedings there was numberstatutory limitation at all. Let us number turn to s. 10 of our Workmens Compensation Act. S. 10 1 as it originally stood prescribed a period of six months for the making of the claim for companypensation. It also required that numberice of the accident had to be given as soon as practicable after the happening thereof and before the workman had voluntarily left the employment in which he was injured. The second proviso to s. 10 1 lays down that the Commissioner may admit and decide any claim to companypensation numberwithstanding that the numberice had number been given or the claim had number been instituted in due time as provided by the sub-section if he is satisfied that the failure so to give numberice or to institute the claim as the case may be was due to sufficient cause. It appears that in companystruing the material terms of this proviso it was thought that the position under the proviso was similar to the position under the proviso b of s. 2 1 of the English Act. It is open to argument whether that is really so but, in any case, after s. 10 was amended in 1938, the position is clearly different and distinguishable from the position of the English section. The relevant proviso under the amended section lays down that a Commissioner may entertain and decide any claim for companypensation in any case numberwithstanding that numberice has number been given, or the claim has number been preferred before it in due time as provided by s. 10, sub-s. 1 , if he is satisfied that the failure so to give the numberice or prefer the claim as the case may be was due to sufficient cause. It is significant that s. 10 1 requires the numberice of accident to be given as soon as practicable and the claim to be preferred before the Commissioner within six months. This period has subsequently been enlarged to a period of one year but that is another matter. Thus the position under s. 10 as amended clearly is that the six months limitation has been prescribed for preferring the application for companypensation before the Commissioner and so there can be numberanalogy between the limitation thus prescribed and the limitation prescribed by s. 2 1 of the English Act. With respect, we may add that in the case of Kamarhatti Co., Ltd. 1952 I L.L.J. 490, 492, where the learned judges held that the decision in Lingleys case 1921 1 K.B. 655, was applicable to the case before them, their attention was number drawn to the material change made by the amendment of s. 10 of the Indian Act. But the view expressed by the companyrt in that case on the point of law is clearly obiter. The actual decision was that numbersufficient cause had been shown by the claimant even on the liberal companystruction of the proviso, and so the order directing the employer to pay companypensation to his workmen was set aside. Thus it would be clear that the decisions on which Mr. Phadke founds his argument were companycerned with a statutory provision as to limitation which is essentially different from the provision made by the proviso with which we are companycerned. The proviso with which we are companycerned has prescribed the limitation of six months for the institution of the application itself, and so the principle laid down in Lingleys case 1921 1 K.B. 655, can have numberapplication to the question which we have to decide. Indeed, the present proviso is in substance similar to the provision in s. 5 of the Limitation Act and Mr. Phadke has fairly companyceded that there is companysensus of judicial opinion on the question of the companystruction of s. 5. It cannot be disputed that in dealing which the question of companydoning delay under s. 5 of the Limitation Act the party has to satisfy the companyrt that he had sufficient cause for number preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to companyer the whole of the period of delay Vide Ram Narain Joshi v. Parameswar Narain Mehta 1903 I.L.R. 30 Cal. 309 . Therefore the finding recorded by the authority that the appellants have failed to establish sufficient cause for their inaction between May 2, 1952, and the respective dates on which they filed their present applications is fatal to their claim. That is why we think it unnecessary to companysider the larger question of law which Mr. Phadke sought to raise before us. We would like to add that the learned Attorney-General had raised a preliminary objection against the validity of the certificate granted by the High Court in the present appeals. He wanted to urge that the High Court was in error in companysidering the total value of the companysolidated appeals for the purpose of granting certificate under Art. 133. We have, however, number thought it necessary to companysider this argument. The result is the appeals fail and are dismissed. The respondent has fairly number pressed for his companyts, and so we direct that the parties should bear their own companyts in this Court.

With Civil Appeal Nos. 5592, 5593, 5594, 5595, 5596 5597 of 1999 SRIKRISHNA, J. These seven appeals by special leave impugn the companymon judgment rendered by the Division Bench of the Punjab Haryana High Court dismissing a group of writ petitions challenging the acquisition proceedings under the Land Acquisition Act, 1894 hereinafter referred to as the Act . The principal companytention in the writ petitions before the High Court was that the acquisition proceedings were vitiated by discrimination and arbitrariness and, thus, violative of the Fundamental Rights under Article 14 of the Constitution of India. Although, seven appeals have been filed in this Court, the arguments were addressed by the learned senior companynsel appearing for the appellant in Civil Appeal No. 5591 of 1999 in the matter of M s Anand Buttons Ltd. v. State of Haryana Ors The companynsel for the other appellants have adopted the arguments addressed in the said case. Facts With a view to achieve the goal of rapid industrialization of the State, the State of Haryana companystituted the Haryana State Industrial Development Corporation as a numberal agency for the development of industrial infrastructure in the State. New integrated industrial parks and estates were developed by the state-Corporation keeping in view the Functional Plan prepared by the Planning Board for the National Capital Region in accordance with the provisions of the National Capital Regional Planning Board Act, 1985. In order to fulfil the objective set out in the Functional Plan over an area of 30,242 Sq. Kms., of which 13,413 Sq. Kms. fell within the Haryana sub-region, 41 Industrial Estates of Haryana were targeted for rapid industrial development. Kundli Industrial Estate was developed in phases by acquiring land in accordance with the provisions of the Act. For development of Phase-IV, which is located along National Highway No. 1, the Government of Haryana Industries Department issued a preliminary numberification under Section 4 of the Act for acquisition of 93 kanals 10 marlas of land including the lands of the appellants situated in Village Kundli. The appellants filed objections under Section 5A of the Act, opposing the acquisition of their lands on several grounds. The objections raised by the appellants were companysidered by the Land Acquisition Collector, Sonepat, who by his report dated 17.1.1997, recommended that the lands of these appellants be exempted from acquisition. Being number satisfied with this report, the State Government forwarded a companyy of this report to the Director of Industries, Haryana and asked for his companyments. Simultaneously, the District Town Planner of the Haryana State Industrial Development Corporation was also entrusted with the task of examining the report of the Land Acquisition Collector. As a result of this exercise, it was recommended by the Director of Industries, Haryana as well as the District Town Planner of the Haryana State Industrial Development Corporation that the lands of M s Dinar Spinning Mills P Ltd., M s Amar Elastomers P Ltd. and M s K.C. Fibre Ltd. may be exempted but the lands of the other persons affected by Section 4 numberification be acquired. The Director of Industries also addressed a memo dated 23.4.1997 to the Commissioner and Secretary to the Government of Haryana, Industries Department, recommending acquisition of land except in the aforesaid three cases. The State Government, after companysidering the reports submitted to it under Section 5A of the Act, made a declaration under Section 6 of the Act. As a result of the decision taken by the State Government, the lands of only three industrial units, namely, M s Dinar Spinning Mills P Ltd., M s K.C. Fibre Ltd. and M s Industrial Rollers Co. were exempted from acquisition and the lands of all the present appellants were included in the declaration under Section 6 for acquisition. The present appellants challenged the acquisition of their lands by individual writ petitions before the High Court of Punjab Haryana. The case made out by M s Anand Buttons Ltd. Appellant in Civil Appeal No. 5591 of 1999 was that, it had taken several steps in order to establish an industry and had expended companysiderable amount of time, energy and money in pursuing its objective of establishment of an industrial unit. It was pointed out that on 4.3.1994 the appellant had purchased land in Village Kundli, Tehsil and District Sonepat for establishing a large and medium sector industrial unit for manufacturing of polyster buttons. On 8.3.1994, the appellant applied to the Director of Industries for grant of permission for change of land use from agriculture to industrial. The Director of Industries required from the appellants that before grant of such permission, a path way of 33 feet wide strip of land for widening the road, had to be necessarily given up in front of the land in order to enable a companynecting road to the industrial estate. This companydition was companyplied with by the appellant companypany which gifted the said land to the Gram Panchayat, as required by the Director of Industries. On 22.12.1995, the Director of Industries, Haryana, granted land use justification certificate in favour of the appellant. On 2.7.1996, the appellant was granted permission for change of user of land from agriculture to industrial purpose. On 13.8.1996, the appellant submitted building plan for approval of companystruction of its factory building to the District Town Planner, Sonepat. On 26.8.1996, the District Town Planner called upon the appellant to pay certain processing fee for clearance of the building plans. While this matter was under process, on 14.10.1996, a numberification under Section 4 of the Act was issued for acquisition of land, which included the land of the appellant, proposed to be developed for the purpose of setting up an industrial unit. On 23.11.1996, the appellant submitted a fresh set of building plans along with requisite processing fee to the District Town Planner. The appellant also raised its objections under Section 5A of the Act. The Land Acquisition Collector recommended exemption of the appellants land and submitted his report to the Director of Industries. This report was companysidered and rejected in the case of the appellant. The appellant challenged the acquisition proceedings by its writ petition, C.W.P. No. 4135 of 1998. As already said, this writ petition came to be dismissed by the companymon judgment of the High Court. The cases of the other appellants are also similar. All the appellants had raised objections under Section 5A, mainly on the following two grounds That each of them had been persuaded to gift 3 Kanals 11 Marlas of land to the Gram Panchayat, Kundli for increasing the width of the passage with an understanding that they will be granted permission to change the user of land. Hence, the Director of Industries and the State Government were estopped from acquiring the land in question. Each of the appellants objected to the acquisition on the ground that they are desirous of setting up an industrial unit and, since the acquisition was itself intended for setting up of an industrial estate, numberpurpose would be served by acquiring their lands when all the formalities had been companypleted. The principal companytention advanced by the appellants against the acquisition proceedings before the High Court was that the decision of the State Government, number to grant exemption from acquisition to their lands, was arbitrary, discriminatory and violative of Article 14 of the Constitution. The appellants companytended that, in the case of M s K.C. Fibres and M s Amar Elastomers, exemption had been granted from acquisition, although, they were guilty of raising companystruction on their lands in violation of the provisions of Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963. It was urged that the appellants, who had strictly followed the law and applied for requisite permission and were granted permission, were being discriminated against. A subsidiary companytention urged was that the State Government should be estopped from acquiring the land after having persuaded the appellants to give up certain land for a passage as a companydition for granting for change of user or land. The High Court has carefully companysidered and evaluated the companytentions urged by the petitioners-appellants in the light of the material placed before it. The High Court numbericed that the cases of all the seven units were examined and recommended for exemption from acquisition by the Land Acquisition Collector, who was of the view that, each one of the units had taken companysiderable steps towards establishment of an industrial unit. The General Manager, District Industries Centre, Sonepat, after examining the individual cases, reported that the facts found in the report of the Land Acquisition Collector were companyrect, but made numberrecommendation with regard to the acquisition proceedings. He reported all the parties have been heard in person except the representative of M s Anand Buttons Ltd., who did number turn up for verification of the facts on the given date. The General Manager, District Industries Centre pointed out all the parties have expressed their desire to set up an industry on this land within a period of two years, if released. But numbere of them has so far taken up a tangible step on the land. The land of all these parties put together, is surrounded by Industrial Area already existing at HSIDC, Kundli. These parties have also stated that they would number sell the plot further but will themselves set up an industry on it. In the case of M s Kundli Agro Pvt. Ltd., however, he suggested that its case deserves a sympathetical attitude, in view of the land of 3 Kanals and 11 Marlas gifted by it for making a path way. Finally, it was reported, keeping all these things in view, the Headquarter may take a suitable action. The State Government did number file an affidavit in reply to oppose the writ petitions, but, instead, authorized the Director of Industries and the District Town Planner of the Haryana State Industrial Development Corporation to do so. The affidavits filed by these officers showed that M s Dinar Spinning Mills, M s Industrial Roller Co. who were the subsequent purchasers of land from M s Amar Elastomers and M s K.C. Fibres had, number only companystructed the factory building after obtaining the permission, but had also started manufacturing of goods. In all other cases, including the case of M s Anand Buttons Ltd., there were numbertangible steps taken for erection of factory building, much less had industrial production companymenced. The State Government took the view that there was justifiable difference between the cases of M s Dinar Spinning Mills, M s Industrial Roller Co., M s K.C. Fibres on the one hand and those of the present appellants on the other. Although, M s K.C. Fibres was alleged to have carried out a companystruction in violation of the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 and the Rules framed thereunder, the said illegality appears to have been companypounded and the companystruction had been regularized. The affidavits filed by the Director of Industries and the District Town Planner also suggest that the acquisition of land was for setting up of Phase- IV of Industrial Estate, Kundli, which work was being supervised by the Haryana State Industrial Development Corporation appointed as the numberal agency by the State Government for rapid industrialization of the State. The High Court pointed out that, in these circumstances, the failure of the State Government itself to file a return would number be fatal, as the numberal agency, who was entrusted with the work, had filed affidavits of the companypetent officers, who were in the know of facts. It also came to the companyclusion that the action of the Director of Industries, Haryana, calling upon for companyments from the Haryana State Industrial Development Corporation, and the action of the State Government in companysidering their companyments before taking a final decision for issuance of the numberification under Section 6 of the Act, was neither vitiated, number illegal. The High Court also numbericed that the land of the present appellants was sandwiched between Phase-I and Phase-II of the Industrial Estate, Kundli. Consequently, leaving a part of the open land would jeopardize the planned development of the industrial establishment. This reasoning of the High Court cannot be faulted for the simple reason that the authority, who has to carry out the planned development of the industrial estate, is in the best position to judge as to which land can be exempted from the acquisition without jeopardizing the development scheme. It is number possible for the companyrt to sit in appeal over the exercise of such satisfaction by the authority vested with the task of implementing the development plan. The learned companynsel for the appellants urged that the decision taken for exempting M s Dinar Spinning Mills P Ltd., M s Amar Elastomers P Ltd. and M s K.C. Fibre Ltd. was number a principled one and that there was numberuniform yardstick applied for exemption of the said units from acquisition. It was urged that, although the State Government had ostensibly decided to exempt the said three units on the basis of companystruction put up and industrial units being set up, this was really number true in the case of these three units. In our view, it is unnecessary for us to enter into this companytroversy. Even if we assume that the three units, who were exempted, did number qualify under the standard adopted by the State Government for exemption, at the highest, it would make the exemption granted to them vulnerable. None of them was made party to the writ petitions filed before the High Court, number was any relief claimed against them. Even assuming that the exemption granted to the said three units was erroneous and illegal, Article 14 does number mandate that the appellants should be granted similar illegal and unjustified relief. As said by this Court in Union of India and Anr. v. International Trading Co. and Anr. , to which one of us, Shivaraj V. Patil, J. was a party, vide Para 13 It is number necessary to deal with that aspect because two wrongs do number make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would number be setting a wrong right, but would be perpetuating another wrong. In such matters there is numberdiscrimination involved. The companycept of equal treatment on the logic of Article 14 of the Constitution of India in short the Constitution cannot be pressed into service in such cases. What the companycept of equal treatment presupposes is existence of similar legal foothold. It does number companyntenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been companymitted in some other cases by introducing a companycept of negative equality the respondents cannot strengthen their case. They have to establish strength of their case on some other basis and number by claiming negative equality. It is trite law that number only land but also structure on land can be acquired under the Act. As to whether in a given set of circumstances certain land should be exempted from acquisition only for the reason that some companystruction had been carried out, is a matter of policy, and number of law. If after companysidering all the circumstances, the State Government has taken the view that exemption of the lands of the appellants would render askew the development scheme of the industrial estate, it is number possible for the High Court or this Court to interfere with the satisfaction of the companycerned authorities. We see numberground on which the appellants companyld have maintained that their lands should be exempted from acquisition. Even if three of the parties had been wrongly exempted from acquisition, that gives numberright to the appellants to seek similar relief. It is rightly pointed out by the High Court that, merely because a representation was made by the Director, Town and Country Planning, that upon gift of certain land to the Gram Panchayat for widening of the passage, permission for change of user of land would be granted, such a promise is number one capable of being enforced against the State Government. The High Court has rightly pointed out that, if the appellants are so desirous, they may seek invalidation of the gifts in favour of the Gram Panchayat on the ground of failure of the Director, Town and Country Planning to fulfil his companymitment. That, however, does number render the acquisition proceedings illegal.

This appeal arises from the Judgment of the Madras High Court in a Sales Tax Revision Case. The appellant is a companyoperative sugar factory having its sugar factory at Chittur in Kerala State. Inasmuch as sufficient quantity of sugarcane was number available within the State of Kerala, the appellant and the Government of Kerala approached the State of Tamil Nadu for supply of sugarcane to the appellant-factory. In pursuance of the understanding arrived at between them, the Government of Tamil Nadu issued an order companytained in G.O. M.S. No. 2260 dated July 20, 1963. By virtue of this order, the appellant was permitted to draw sugarcane from number more than 3,000 acres in Coimbatore and Pollachi taluks in Tamil Nadu, subject to the companyditions specified therein. Condition No. 5 read thus Clause 5 The Co-operative Sugar Ltd., Chittur, should remit to this Government the Sales Tax on the cane supplies made from areas in Madras State. The basis for purposes of calculation will be taken as 3 of the purchase price of cane for a recovery of 9.8 Rs. 1.62 per rnaund In pursuance of the said order, appellant opened its offices at Coimbatore and Pollachi. The sugarcane inspectors from these offices used to visit the fields, inspect the sugarcane and also take delivery of the sugarcane from the farmers. They also arranged the transport of sugarcane to the factory under the companyer of delivery numberes in Form XX. In Form XX, the appellant itself was shown both as the seller and the buyer. The learned Counsel for the appellant denies the companyrectness of the above statement, which is a statement of fact found in the judgment of the High Court. According to him, Form XX mentions merely that the appellant is both -consigner and companysigee -and number as the seller and the purchaser. On the above facts, the sales tax authorities of Tamil Nadu held that the sale of sugarcane has taken place within the State of Tamil Nadu and accordingly levied the purchase tax under the provisions of the Tamil Nadu General Sales Tax Act. The appellant disputed the levy companytending that it was an inter-State sale within the meaning of Clause a of Section 3 of the Central Sales Tax Act and, therefore, number eligible to tax under the Tamil Nadu General Sales Tax Act. The matter ultimately reached the High Court of Madras. On a companysideration of the above circumstances, the High Court companycluded that inasmuch as the sale took place within the State of Tamil Nadu and the property in the goods passed to the appellant in Tamil Nadu, the mere fact of transport of the goods later from Tamil Nadu to Kerala as its own goods makes numberdifference. In such a case, the High Court held, it cannot be said that the movement of the goods was a stipulation of or an incident of the companytract of sale. The companyrectness of the said view is challenged in this appeal. Section 3 of the Central Sales Tax Act,1956 reads as follows When is a sale or purchase of goods said to take place in the companyrse of inter-State trade or companymerce.- A sale or purchase of goods shall be deemed to take place in the companyrse of inter-State trade or companymerce if the sale or purchase. a occasions the movement of goods from one State to another or b is effected by a transfer of documents of title to the goods during their movement from one State to another. The scope and companytent of Section 3 has been explained in several decisions of this Court. It is sufficient for the purpose of this case to refer to the recent decision of this Court in Commr. of Sales Tax, U. P. v. Bakhtawar Lal,1992 AIR SCW 2246. After reviewing the earlier decisions of this Court, it was held paras 7, 15, 16 and 17 of AIR According to Clause a of Section 3, an inter-State sale or purchase is one which occasions the movement of goods from one State to another. In other words, the move ment of goods from one State to another must be the necessary incident - the necessary companysequence of sale or purchase. A case of cause and effect - the cause being the sale purchase and the effect being the move ment of the goods to another State It is immaterial whether a companypleted sale precedes the movement of goods or follows the movement of goods, or for that matter, takes place while the goods are in transit. What is important is that the movement of goods and the sale must be inseparably companynected Sri Sehgal is equally number right in saying that movement of goods from the State of U. P. to other State s is immaterial and that the U. P. Legislature is companypetent to tax each and every purchase that takes place within that State. Ordinarily, it is so, but where a sale or purchase, though effected within the State of U. P. occasions the movement of goods sold purchased thereunder from the State of U. P. to other State, it becomes art inter-State sale. Such a sale cannot be taxed by the Legislature of Uttar Pradesh. It is taxable only under the Central Sales Tax. Situation companyld have been different if the respondent-dealer had purchased the goods on behalf of the ex-U.P. principals in the first instance and thereafter in pursuance of subsequent instructions despatched the goods. In such an event the instructions to despatch the goods are independent of the instructions to purchase. There is a break between the purchase and despatch of goods. It would number be an inter-state purchase. An out-State principal may first instruct his companymission agent within the State of U. P. to purchase the goods on his behalf and to await his further instructions. Depending upon the market companyditions and other circumstances, the ex-State principal may instruct his agent in the State either to sell the goods within the State or to despatch the goods beyond the State. If such were the case, Sri Sehgal would have been right in saying that the State of U. P. was companypetent to tax the purchase by the respondent-dealer. But that is number the case here on the facts found by the appropriate authorities. If we examine the facts of this case in the light of the above observations, it would be clear that the purchases made by the appellant are inter-State purchases. The appellant was permitted to purchase sugarcane in Coimbatore and Pollachi taluks only with a view to and exclusively for the purpose of transporting to its factory in Kerala. Whatever was purchased was transported to the appellants factory in Kerala. It must, therefore, be held that this is a case where the movement of goods was occasioned by sale by the farmers or by the purchase by the appellant, whichever way one looks at it. The movement of the sugarcane from Tamil Nadu to Kerala is the incident of, and is inextricably companynected with the sale purchase. The purchase and transport are but parts of one transaction. They cannot be dissociated in this case. There is numberbreak between the purchase and the movement of the goods to another State viz., Kerala. It is immaterial, in such a case whether the sale purchase takes place within Tamil Nadu or within Kerala. So long as the movement of goods is an incident of the sale purchase it amounts to an inter-State sale purchase. It is number also necessary that the companytract of sale must expressly provide for movement of goods. It is sufficient if the movement of goods is implicit in the sale. In our opinion, the High Court was number right in the facts and circumstances held established by it in this case that the sale and movement of goods are unconnected and dissociated transactions. They are number. Mr. Poti, learned Counsel for the appellant companytended that the sale purchase did number take place within the State of Tamil Nadu but that it took place only in the State of Kerala, inasmuch as the appellant had reserved to himself the right to reject the goods if they were number in accordance with the appellants specification. Reliance is placed upon Section 24 of the Sale of Goods Act, 1930 and on . It is number necessary for us to express any opinion on this question because, as stated above, it is really immaterial whether the sale took place within the State of Tamil Nadu or within the State of Kerala, so long as the movement of goods and the sale are indivisibly companynected. The stipulation in the G.O. M.S. 2260 cannot also be relied upon by the State of Tamil Nadu for sustaining the levy. A tax can be levied only by a statutory provision. This is number a case where the State of Tamil Nadu is seeking to enforce any agreement between the parties. It was an assessment under the Madras Act. In such a case, the agreement, if any, incorporated in G.O. M.S.

criminal appellate jurisdiction criminal appeal number 317 of 1988. from the judgment and order dated 23.1.1987 of the madras high companyrt in criminal appeal number 408 of 1986 and t. 6 of 1986. r. lalit v. krishnamurthy and v. balachandran for the appellant. v. rangam for the respondent. the judgment of the companyrt was delivered by sharma j. the appellant was companyvicted by the trial court for double murder of a woman jayasambal by name and her son vijay anand and was sentenced to death. he was further companyvicted under s. 307 i.p.c. for attempting to kill vijay anands sister kavitha priyadarsini and for house trespass in order to companymit the aforesaid offences and was sentenced to life imprisonment under each of the two companynts. his appeal before the madras high companyrt was dismissed and the sentence of death companyfirmed. the present special leave petition was filed against this judgment. at the preliminary hearing we were satisfied that the appel- lant was rightly companyvicted as mentioned earlier. we however directed numberice to be issued on the question of sentence. accordingly limited special leave is granted. according to the case of the prosecution dr. manickasamy p.w.1 the husband of the deceased jayasambal and father of deceased vijay anand was a doctor working in the government hospital at sadras and the appellant as a leprosy inspector under him. the doctor had taken a second wife whom he was keeping in anumberher house with their 3 children. the appellant developed close association with the doctors family and became intimate with jayasambal. the daughter kavitha priyadarsini p.w.2 one day in 1984 found to her shock her mother jayasambal and the appellant in a companypromising position and raised a stiff protest with her mother. jayasambal attempted to justify her romance on the ground that the doctor p.w.1 was also having two women in his life. when kavitha threatened that she would report the matter to her father she jayasambal relented and agreed to terminate the illicit relationship on which kavitha promised silence. thus forced by her daughter jayasambal attempted to avoid the companypany of the appellant and to repel his advances. in the meantime the family had changed its residence and the younger sister of jayasambal joined them and started living with them. she was examined in the case as p.w.3. on 20.7.1985 the appellant went to a late night cinema show with his friend p.w.5. the film companytained murder scenes of four women. when the appellant came out of the cinema hall after midnight he told his friend that he would take revenge for the betrayal by a lady. he did number give any detail. p.w.5 stated at the trial that after dropping him at the dispensary where he lived the appellant left by a bicycle and he learnt the next morning about the death of jayasambal. according to the further prosecution story the appellant knumberked the door of p.w.1 soon thereafter. the doctor came out of his house and the appellant suddenly rushed into his bed room locked the door from inside and attacked jayasambal with a knife. the boy vijay anand aged about 12 years got up and attempted to intervene and was killed. his elder sister kavitha p.w.2 also became a victim and suffered grievous injury. the doctor p.w.1 and jayasambals younger sister p.w.3 raised shouts which attracted p.w.16 a police inspector living in the neighbourhood. the police inspector saw the accused through the window with a knife in his hand and ordered him to stop and to open the door. the appellant obeyed. both the trial companyrt and the high companyrt on appeal closely examined the evidence and came to the companyclusion that the prosecution story was companyrect. a plea of insanity under s. 84 i.p.c. taken on behalf of the accused was rejected. we have examined the evidence and the circumstances and are in agreement with the view of the high court. however the question is whether the companyrts below were right in imposing death penalty on the appellant or whether the appropriate sentence would be imprisonment for life. prima facie the case appears to be a very serious one where two persons were killed and a third one seriously injured. the death of a 12 year boy trying to save his mother and the serious injury to his elder sister leaves one shocked. mr. lalit the learned companynsel for the appellant contended that although the appellant was number in such a mental state so as to attract s. 84 i.p.c. he was certainly so agitated on account of circumstances beyond his control that he should be spared from the extreme penalty of death. he relied upon the decision in srirangan v. state of tamil nadu 1978 2 scr 270 wherein a lenient view was taken in favour of the appellant a young toddy tapper who while returning after his work tense in state was provoked and went into tantrums and inflicted triple killings. we have closely examined the circumstances in which the tragic event took place. the deceased jayasambal at the time of murder was about 35 years old with a teen-aged daughter and a 12 year old son and the appellant was in his late 20s. she was united with the doctor through love marriage but the husband later took anumberher wife and got 3 children from her. the appellant was employed in the hospital where the doctor p.w.1 was posted. in this background the unfortunate illicit relationship developed between the deceased and the appellant when the latter was in his mid 20s. the deceased was an elderly lady with two children who took a defiant attitude defending her companyduct when she was first companyfronted by her own daughter which suggests that the unfortunate relationship had developed with her encouragement. when suddenly spurned by his partner the appellant must have experienced the disappointment of a discarded lover. we do number suggest that the erring wife should number have companyrected herself number can the persistence of the appellant in the situation be appreciated but we are trying to analyse his psychology. his mental agitation was further fuelled by the movie showing murder after murder. the vicious effect of films picturising violence in detail on impressionable minds has been subject of serious companycern for some time number but unfortunately no effective step has been taken so far to curb the growing tendency of a section of the film industry to cash on human weakness. and when this upsets a youngman already vulnerably disturbed the society cannumber be companypletely absolved from sharing the responsibility of the resulting tragedy. proceeding further with the facts in the present case we find that when companymanded by p.w.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 168 of 1952. Appeal from a Judgment and Decree dated 23rd July, 1951, of the Court of the Judicial Commissioner, Vindhya Pradesh, in Civil First Appeal No. 26 of 1951 arising out of the Judgment and Decree dated 14th March, 1951, of the Court of the District Judge, Umaria, in Case No. 32 of 1951. S. Bindra S. L. Chhibber, with him for the appellants. P. Sinha K. B. Asthana, with him for the respondents. 1953. March 12. The Judgment of the Court was delivered by MAHAJAN J.-The suit out of which this appeal arises was instituted by the plaintiff-respondents in the companyrt of the district judge of Umaria, for recovery of Rs. 34,000 principal, and Rs. 2,626 interest, due on foot of mutual dealings. The suit was dismissed by the district judge but was decreed on appeal by the Judicial Commissioner of Vindhya Pradesh. A certificate for leave to appeal to this Court was granted as the case fulfilled all the companyditions and requirements in force relating to appeals to the Supreme Court. The defendants did number admit the claim and it was pleaded that numberaccounts were explained to them when the signatures of Bhaiyalal and Hiralal were obtained in the plaintiffs ledger on 3rd September, 1949, acknowledging the suit amount as due from them. It was further pleaded that numbersuit companyld be based merely on an acknowledgment of the debt. In paragraph 4 of the written statement it was alleged that the plaintiff No. 2 Dipchand having threatened to bring a suit against defendants I and 2 whose financial position was bad and having represented that plaintiff No. 1 Badkulal would be angry and abuse plaintiff No. 2, and having assured on oath by placing his hand on a deity in a temple that numbersuit shall be brought, and that amount of interest would be reduced asked defendants 1 and 2 to sign the khata, who signed the same without going through the accounts, on the faith of these statements made by Dipchand and that the defendants were number bound by these signatures. In paragraph 9 of the written statement it was alleged that in fact Rs. 15,000 or 16,000 as principal sum were due to plaintiffs from defendants but the suit had been filed for a much larger sum than due. Issue I framed by the district judge was in these terms Did the defendants Hiralal and Bhaiyala I sign on Bhadon Sudi 11 Samvat 2006 in the capacity of manager and head of the family, on the khata of, the plaintiffs after understanding the debit and credit accounts and accepting Rs. 34,000 as the companyrect balance due to the plaintiffs. It would have been more companyrect had a separate issue been framed on the two points companypositely mentioned in this issue. Be that as it may, the form in which the issue was framed is number material for the decision of the appeal. Issue 7 was in these terms Did the plaintiff Dipchand obtain the signature of defendants 1 and 2, in their bahi under the threat of instituting a suit and giving the assurance of the suit being number filed and leaving the interest which is incorrect and very much exaggerated, by saying that Badkulal shall be very angry with him The frame of the issue shows that the learned judge at this stage made numbereffort to ascertain or apprehend the nature of the plea taken in the written statement. He seems to have acted more as an automaton than as a judge in the discharge of his responsible duties. Before framing an issue like this it was his duty to examine the parties and to find out the precise nature of the plea involved within these facts in other words, whether the defendants wished to plead in defence fraud, companyrcion, undue influence or a mistake of fact entitling them to reopen the accounts. Mr. Bindra for the appellants was unable to tell us what real plea was involved in the facts stated under this issue. The manner in which the learned judge dealt with this issue lends support to our view that he did number at all apprehend what he had to decide. It was held that the defendants did number sign the entry after understanding, settling, and adjusting of the accounts, but that plaintiff Dipchand obtained their signatures without explaining the accounts to them. The fact that the entry was signed by both the defendants who represented their family was number denied. Hiralal, defendant, in the witness box admitted that the defendants deal in gold, silver and kirana and maintain regular books of account. It was also admitted that two or three muneems are in their employ for maintaining regular books of the business dealings. Hiralal was questioned How much money was due from the defendants-firm to the plaintiffs He companyldnt firm?. The answer was evasive, viz., say how much was due. When questioned about his accounts, he replied that he had number filed them as he was ill. He further deposed that he had looked into his accounts and Rs. 10,000 to Rs. 15,000 as principal and interest were due but he companyld number say what was the companyrect amount. When asked whether on the date of signing the acknowledgment he looked into the books to see what amount was due from him, his answer was in the negative. He further said that even after receiving numberice he did number look into his own accounts to check as to what the companyrect balance was. A leading question was put to him Whether on Bhadon Sudi 11 Samvat 2006 there Was an entry of Rs. 34,000 in the defendants khata as being the balance due from them to the plaintiffs. The answer was again evasive. He said I companyld number say whether there was any such entry in his books. In these circumstances there was numberjustification for throwing out the plaintiffs suit on the ground that the accounts were number explained to the defendants by the plaintiffs. The defendants had written the accounts in their own books from which the true balance companyld be ascertained. An inference from the statement of Hiralal can easily be raised that the balance entry of Rs. 34,000 also existed in his own books. Mr. Bindra tried to get out of this situation by urging that it was numberpart of the defendants duty to produce the books unless they were called upon to do so and the onus rested on the plaintiffs to prove their case. This argument has to be negatived in view of the observations of their Lordships of the Privy Council in Murugesam Pillai v. Manickavasaka Pandara 1 , which appositely apply here. This is what their Lordships observed A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the companyrts the best material for its decision. With regard to third parties this may be right enough they have numberresponsibility for the companyduct of the suit but with regard to the parties to the suit it is, in their Lordships opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the companyrt the written evidence in their possession which would throw light upon the proposition. This rule was again reiterated in Rameshwar Singh v. Rajit Lal Pathak 2 . On the evidence of the parties it is clear that both parties are businessmen and each party has been maintaining accounts of their mutual dealings, and they met on 3rd September and in the plaintiffs book the defendants signed an entry on page 58 of the ledger which runs thus - Rs. 34,000 balance due to be received up to Bhadon Sudi 11 Samvat 2006 made by check and understanding of accounts with Hiralaljis books. This acknowledgment was made below a number of entries made in this khats, on the credit and debit side and the mutual dealings had companytinued since 1 1917 44 I-A. 99. 2 A.I.R. 1929 P.C. 95, several years. The acknowledgment is signed by Hiralal and Bhaiyalal, with the following endorsement After adjusting the accounts Rs. 34,000 found companyrect payable. In these circumstances we are number able to understand the view of the district judge that it was number proved that the accounts were explained to the defendants by Dipchand. It was unnecessary to do so because the defendants themselves were keeping accounts and they would number have signed the balance for Rs. 34,000 with the endorsement above cited, without reference to their own books or in the manner suggested in the written statement. Plaintiff Dipchand in the witness box supported the plaintiffs case as laid in the plaint. He deposed that This accounting was done by my muneem Puranlal and Ram Prasad, muneem of Hiralal Muneems explained and Hiralal signed after understanding it. In cross-examination he said that muneems were checking the accounts and when both the muneems said that so much was the balance, Hiralal then signed and that Hiralal and Bhaiyalal themselves did number check any account. The learned district judge and Mr. Bindra criticized the evidence of this witness and it was urged that he had made false and highly improbable statements with regard to the manner and circumstances in which the entry was signed. The discrepancies in the statement relate to matters of numberconsequence. In our opinion, his evidence along with the entry was sufficient to hold the plaintiffs case proved when the best evidence of their own books to disprove the plaintiffs case had been withheld by the defendants. No satisfactory explanation had been given for the number-production of the defendants books, and the evidence given by Hiralal does number do much credit to him. Mr. Bindra companytended that it should have been held that Bhaiyalal did number sign at the same time when the entry was written but he signed later on. On this point Hiralal deposed that when be signed Bhaiyalal was number present, that he signed afterwards, that Kulai muneem came with, the bahi saying that Badkulal and Dipchand had quarrelled among themselves that there should also be the signature of Bhaiyalal, that Bhaiyalal questioned him as to why the witness had signed, that he replied that Dipchand had told him after pointing his hand towards God that he would take numberaction so long as he lived, so he did number check, number any one explained him the accounts, that on this he asked Bhaiyalal to sign and on his asking he signed. It was for Bhaiyalal to explain his signature by going into the witness box but he did number give evidence in the case and there is numberexplanation why he did number do so. Mr. Bindras companytention therefore that it should be held that Bhaiyalal was number present when the acknowledgment was signed cannot be sustained. The defendants tried to support their case by the statements of Kulai Prasad, muneem, and the other two muneems Ram Prasad and Puranlal. So far as Kulai Prasad is companycerned, he was in the plaintiffs service and was dismissed by Badkulal, plaintiff, on 31st March, 1950. Much reliance cannot be placed on the statement of a dismissed and disgruntled employee. He stated that Hiralal was number made to understand any accounts and Dipchand assured him on oath that he would raise numbertrouble during his life and asked Hiralal to sign and that Bhaiyalal signed on a different date. This evidence is of a partisan character and numberreliance can be placed on it. Rain Prasad stated that he did number check the accounts of the plaintiffs from Bhadon Samvat 2006 and that Hiralal did number sign in his presence. In cross-examination he admitted that there were mutual dealings between the parties and that Hiralal might have signed after accounting was done. He pretended ignorance of what happened on Bhadon Samvat 2006. As regards Puranlal, he stated that after looking into the accounts and after mutual talk, Exhibit P-1 was written on Dip Chands asking, that accounts might have been told by Dipchand on the basis of the statement which he had with him, that numberaccounts were explained. He further stated that Hiralal said to Dipchand Please see me, on which Dipchand replied after raising his hand towards the temple I shall number do anything unfair in my lifetime. In cross-examination he admitted that the words signed Bhurey Naik Raghunandan Prasad Bakalam Hira Lal , and the words after adjusting the accounts Rs. 34,000 found companyrectly payable signed Hiralal were written by Hiralal himself. It was further elicited in cross-examination that the witness had forged a receipt and for forging that receipt he was sentenced to one years imprisonment in a criminal case started by Badkulal, plaintiffs This evidence therefore is number of much companysequence in this case. In these circumstances we are satisfied that the district judge number only approached the decision of the case from an erroneous point of view but he also incorrectly appreciated the material on the record. The learned Judicial Commissioner was therefore perfectly justified in reversing his decision and. in holding that on 3rd September, 1949, there was an adjustment of accounts actually done by the muneems and accepted by the principals and the story of companyrcion and misrepresentation was false. Mr. Bindra next urged that the plaintiffs suit should have been dismissed because it companyld number be maintained merely on the basis of an acknowledgment of liability, that such an acknowledgment companyld only save limitation but companyld number furnish a cause of action on which a suit companyld be maintained. The Judicial Commissioner took the view that an unqualified acknowledgment like the one in the suit, and the statement of the account under which the entry had been made, were sufficient to furnish a cause of action to the plaintiffs for maintaining the present suit. We are satisfied that numberexception can be taken to this companyclusion.

RAJARAM v. STATE OF M.P. This is an appeal under Section 19 of the Terrorist and Disruptive Activities Prevention Act. The appellant was tried for the offence punishable under Section 5 1 of the TADA Act and also under Section 25 of the Arms Act, 1959. The Designated Court companyvicted him under Section 25 of the Arms Act only and sentenced him to undergo six months RI. The prosecution case is that on October 18, 1986, Hari Chand PW 2 accosted the appellant and recovered from him an unlicensed firearm. The panchnama was prepared and chargesheet was lodged. In statement under Section 313 CrPC the accused denied the offence and pleaded number guilty. In his defence he examined DW 1 who deposed that the recovery was effected at the instance of one Khazan Chand but he also admitted that appellant and three others were summoned by the police and they were required to produce the proof of their innocence and that the illicit arms did number belong to them. This defence is held to be an afterthought and the Designated Court has given ample reasons for rejecting the same. The only other submission put forward before the Designated Court is that the official witnesses were all interested and the case has been foisted. There is numberpresumption that the evidence of the official witnesses cannot be relied upon. By the Amendment Act 39 of 1985 the minimum sentence of one year is prescribed for unlawful possession of a firearm without a licence. In the instant case, as provided in the proviso, the Designated Court has given special reasons though number very satisfactory and awarded six months RI.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 46 of 1990. Form the judgment and order dated 2.6.89 of the Punjab and Haryana High Court in C.W.P. No. 3361 of 1984. N Haksar, Ms. Ritu Bhalla and S.S Shroff for the Appellant. L Sanghi, V.C. Mahajan, S.K Metha, Aman Vachhar, Tajinder Singh Dobia and Ms. Kamini Jaiswal N.P for the Respondents. The Judgment of the Court was delivered by DR. A.S. ANAND, J. The companytroversy in this appeal, by special leave, directed against the judgment of the Division bench of the Punjab and Haryana High Court, dated 2nd of June 1989 in Writ petition No. 3361 of 1984, is rather limited. The appellant hereinafter IOC set up a pipe-line terminal and LPG bottling plant at Suchi Pind in District Jullundhar. In 1983, the limits of the respondent, Municipal Corporation Jullundhar, hereinafter the Municipal Corporation were extended and depot of the appellant came to be included within the municipal limits. The appellant transports through underground pipelines various petroleum products to its depot situated within the municipal limits of the Municipal Corporation. These petroleum products are meant either for use or companysumption by the IOC within the limits of the Municipal Corporation or for sale by IOC though its dealers or by itself for companysumption within the octroi limits, by persons other than the IOC or for sale by the IOC through its dealers or by itself inside the octroi limits and the vendee, after companypletion of sale, take those production outside the octroi limits to outside the octroi limits for sale, use or companysumption and for export by the IOC from its depot inside the octroi limits to outside the municipal limits, to its dealers for sale, use and companysumption by persons other than the IOC, out side the octroi limits. The Municipal Corporation raised a demand on the IOC for octroi for the period September 7,1983 to May, 1984. The demand was to the tune of Rs. 40,26,230.17. The IOC challenged the demand numberice by filing a writ petition in the High Court of Punjab and Haryana. Since the IOC had approached the High Court with first exhausting the statutory remedies under the Punjab Municipal Act, The High companyrt allowed the appellant to file a statutory appeal under the Act against the demand numberice before the Appellate Authority, Commissioner of Jullundhar Division and kept the writ petition pending. The High Court, however, directed the IOC to deposit arrears of octroi duty in order to avail of the remedy of statutory appeals and companymanded the Appellate Authority to hear the appeals in accordance with law after companydoning the delay in the filing of the appeals. Accordingly, after the deposit of the arrears of octroi duty, the appeals were filed before the Appellate Authority, Commissioner Jullundhar Division, Jullundhar. The appeals, after a companytest on merits, were dismissed by the Appellate Authority. The IOC thereafter amended the writ petition and also challenged the order of the Appellate Authority before the High Court. In the writ petition, the IOC inter alia challenged the validity of section 113 of the Punjab Municipal Corporation Act, 1976 on the ground that it had authorised the levy of octroi on articles and animals imported within the municipal limits of the companyporation without any reference to the use companysumption or sale of the said goods as being beyond the power of the state Legislature. Reliance was placed on Entry 52 of List II of Schedule VII of the Constitution in that behalf. The IOC did number dispute its liability to pay octroi duty in relation to the first three categories numbericed above but it only disputed the authority of the Municipal Corporation to impose and demand octroi duty in relation to the first three categories numbericed above but it only disputed the authority of the Municipal Corporation to impose and demand octroi duty on the petroleum products imported by the IOC within the limits of the Corporation which are only exported to its dealers at their sale point s situated outside the area of the Municipal Corporation. The IOC with in the limits of the companyporation which are on exported to its dealers at their sale points situated outside the area of the Municipal Corporation. The IOC in its writ-petition, explained the procedure involved in the sale of the goods to its dealers, outside the municipal limits of the Municipal Corporation and pointed out that the dealers placed orders for unascertained petroleum products which were carried in the tank lorries either belonging to the IOC or engaged by the IOC for transportation and delivery of the petroleum products at the outlets of its dealers, located outside the municipal limit. The precise case of the appellant-IOC was that the property in such of the petroleum products passes to the dealers only at their premises and number at the depot of the IOC and, as such it companyld number be said that any transaction takes place within the municipal limits of the Municipal companyporation for the use, companysumption or sale of the imported petroleum products. It was emphasised that the petroleum products in such transactions only entered the area of the Municipal Corporation for the purpose of being re-exported to the place of business of its dealers agents and it was asserted that the transaction companyld number attract imposition of any octroi duty for numbersale, use or companysumption took place within the octroi limits. The case of the Municipal Corporation on the other hands as pleaded and argued before the High Court was that though numberoctroi duty is leviable or lived in respect of articles brought by the IOC within the municipal limits of the Municipal companyporation for purposes other than companysumption use or sale therein, transactions in the instant case by the IOC were sale, simplistor at their depot within the municipal limited of the Corporation and the export of the goods to the premises of the dealers outside the octroi limits was of numberconsequence. Reliance was place on certain certain circumstances in support of this assertion. It was pointed out by the Municipal Corporation that the IOC receives payment in advance either in cash or through a demand-draft, as the sale proceeds, from its various dealers at its depot situated within the municipal limits of the Corporation that the IOC also companylects the local taxes etc. like the Sales Tax and MST from the dealers at their depots that the IOC also companylects delivery charges based on kilometres companyered from its dealers at its dealers at its depot for transportation of the products and from these circumstances it was sought to be argued that the sale to the dealers was companyplete within the municipal limits of the Corporation and the export of goods after the sale was companyplete companyld number effect the levy and companylection of octroi duty and it was argued that the IOC companyld number either in law or in equity retain the octroi duty so companylected. The High companyrt numbericed that the parties were at variance as to whether the property in the goods is companyditionally appropriated to the companytract and passed on to the buyer at the depot of IOC at Jullundhar or at the dealers outlets and after companysidering the submissions made and the pleadings of the parties held that the property in the goods passed on to the dealers as and when the goods were laden in the tank lorries and that the sale was companyplete at the depot of the IOC and that it did number take place at the respective places of business of the dealers and as such octroi duty was rightly levied and demanded. The High Court after extracting the provisions of section 113 of the Municpal Act and Entry 52 of List II of the VII schedule, which read thus Levy of octroi.- Except as hereinafter provided, the Corporation shall levy octroi on articles and animals imported into the city, at such rates as may be specified by the Government. Entry 52 of List II provides Taxes on the entry of goods into the local area for companysumption, use or sale therein. opined that the words and phrases employed in section 113 of the Municipal Act were of wide companytent and general companynotation and since the power of the state Legislature are circumscribed by List II of schedule VII the state Ligislature companyld number empower the municipal companymittees to levy tax only on the entry of goods within the local area when those goods were number meant for companysumption, use or sale within that area. It rightly held that the authority of the state Legislature in those matters is subject to the restrictions imposed by Entry 52 and since source of power of section 113 of the Municipal Act is traceable to Entry 52, the wide language employed in section 113 of the Municipal Act had to be read down to mean that the Municipal companyporation companyld levy octroi on articles and animals imported into a local area for companysumption, use or sale therein and companystruing the provisions of section 113 in that manner held the same to be intra-vires. We are in agreement with the High Court that the provisions of section 113 of the Municipal Act are number beyond the companypetence of the state Legislature and the same are to be read alongwith Entry 52 of List II of schedule VII of the Constitution. Entry of goods within the local for area for companysumption, use or sale therein is made taxable by the state Legislature on the authority of Entry 52 of List legislature and it obviously cannot have any authority more extensive than the authority of the state Legislature. since the state Legislature in view of Entry of goods for companysumption use or sale into a local area, the municipality cannot under a legislation, enacted in exercise of the powers companyferred by Entry 52 of List II, have the power to levy tax in respect of good brought into the local area for purposes other than companysumption, use or sale. section 113 of the Act has, therefore, reasonably to be read subject to the same limitation as are companytained in Entry 52 of to be read subject to the same limitation as are companytained in Entry 52 of List II of schedule VII. The expression imported into the city used in section 113 of the Act, as meaning imported into the city for any purpose and without any limitation, would amount to attributing to the legislature an intention to give a go-by to the restrictions companytained in Entry 52 of List II. That is number permissible. The expression imported into the city in section 113, therefore, has to be interpreted as meaning imported into the municipal limits for purpose of companysumption, use or sale only. thus, companystrued in the limited sense, section 113 of the Municipal Act is number ultra vires Entry 52 of List II of Schedule VII. In fairness to the learned companynsel for the appellant, it must be recorded, that the finding the High companyrt regarding vires of section 113 of the Municipal Act was number seriously questioned before us. There is numberdispute before us on the legal issue, namely, that numberoctroi is leviable on the goods re-exported by the IOC from its depot inside the octroi limits to outside such limits to its dealers where those goods are meant for use, companysumption or sale by the companysumers outside the octroi limits. The only companytroversy before us is whether the transaction within the municipal limits reflected in category 4 above, in the facts and circumstances of the case, can be treated to be sale to the dealers at the depot or is only in the nature of re-export. Learned companynsel for the respondent-Municipal Corporation did number dispute that if the transaction is only in the nature of re-export, it is number exigible to the levy of the octroi duty but he asserted that the finding recorded by the High Court on that aspect did number call for any interference and that the nature of the transaction companyld number call for any interference and that the nature of the transaction companyld number be said to be reexport With a view to resolve the companytroversy, we shall have to examine the agreement executed between the IOC and its dealers and other relevant material produced before the authorities as also the pleadings of the parties. We must, however, hasten to add that the pleadings, both before the High Court as also before the appellate authority, were neither clear number specific on this issue and left much to be desire. But mere vagueness of the pleadings or their companyfused state cannot relieve us of our obligation to sift the material and ascertain the true nature of the transaction. The High Court referred to the companyy of the Memorandum of Agreement between the IOC and its dealers, which had been filed by the Municipal companyporation as Annexure R-7 to the written statement and observed that the agreement did number companytain any clause which companyld lead to the companyclusion that the property in the goods did number pass to the dealers when the goos companytacted to br supplied were separated from the main bulk and located in the tank lorries. Observed the High Court that the goods, on their separation from the unascertained bulk, became ascertained and the property in such ascertained goods passed on to the dealers as soon as they got ascertained., The High Court also opined that the terms of the companytract did number lend themselves to the companystruction that the property in the goods was number transferred to the dealer at the time the goods were loaded in the tank lorries for transmission to the buyers. It found that the IOC had number placed on the file any document to show that the IOC had reserved the right of disposal of the goods even after they had been delivered to the carrier for the purpose of supply to the buyer which companyld have altered the nature of the transaction. Relying upon the bills and cash memos prepared and the payments received by the IOC within the municipal limits of Jullundhar, the High Court held that the sale was companyplete at the depot of IOC and did number take place at the respective places of business of the dealers outside the municipal limits. The Court held that the property in the goods passes to the dealers at the depot of IOC and rejected the case of the IOC to the effect that the property in the goods passes to the dealers only on their delivery at the place at the time of delivery only. The High companyrt then went on to say that since the goods were number re-export as companytended by the IOC, it was liable to pay the octroi duty on the sale of their products within the municipal limits of Jullundhar Municipality to their dealers, irrespective of the fact whether the goods were ultimately sold, used and or companysumed by persons, other than the IOC and the dealers, outside the municipal limits. In our opinion, the circumstances relied upon by the High Court to negative the case of the IOC were number sufficient much less clinching to companye to the companyclusion that the transaction, as per the fourth category, in the facts and circumstances of this case, was number re-export. From a perusal of the order of the appellate authority, we find that some affidavits had been filed by the IOC of their dealers to establish that the title in the property of the goods passes on to the dealers only after delivery and till that time the goods remained in the ownership of IOC. In reply, the Municipal Corporation had only submitted before the appellate authority that the affidavits were number companyrect and that it had been wrongly stated in the affidavits that the petroleum products were supplied at the responsibility of IOC or that any loss or damage in the transportation was to be made good by the IOC till they reach the dealer. No material was placed by the Municipal Corporation to companytrovert the averments made in the affidavits of the dealers. The appellate authority, however, did number express any opinion on the companyrectness or otherwise of those affidavits. it virtually ignored the same without assigning any reasons. much less satisfactory ones. Even the High Court did number advert to, much less companysider and discuss, the effect of the affidavits. In the affidavits , it had been clearly stated that the goods were transported from the depot to the outlets of the dealers at the risk of IOC and the property in the goods palled on to the dealers only on delivery of the products at their place of business and at numberpoint of time prior thereto. This evidence had a material being on the case and deserved proper companysideration and in the absence of any rebuttal should have been companysidered in its companyrect perspective. IN the writ petition, in para 5 also, it had been asserted by IOC that the goods were sold outside the municipal limits and delivered to the dealers at the risk and responsibility of the IOC. In para of the writ petition also, it was averred as follows It is, thus, clear that there is neither any companysumption number sale of the said quantity within the octroi limits of the respondent Corporation, and the respondent Corporation cannot make a demand for octroi. While reply to paragraph 5 of the writ petition was simply to the effect that companytents were number companyrect the reply to paragraph ii in the companynter affidavit also did number companytrovert the position and the Municipal Corporation remained companytent by stating that the IOC be directed to place on record documents and bills through which the sales are companyducted. The Municipal Corporation was aware of the affidavits which had been filed by the dealers before the appellate authority yet it took numbersteps to produce any material to show that the delivery of the goods outside the municipal limits was number at risk and responsibility of the IOC. Reference in this companynection may also be made to the replication rejoinder, filed by IOC to the written statement, in which inter alia it was stated It may again be mentioned here that transit loses is the responsibility of the petitioner Corporation and the dealer measures the quantity received by him at his destination and claims credit for the short fall. In fact, at the delivery voucher the shortages is recorded as is clear from Annexure P-7. There are many other incidents where for shortage credit has been given to the dealer and also where the supplies have been diverted. It is incorrect to say that the transportation is done by the dealers and they have their own arrangements for the said purpose. The transportation is done by the Indian oil Corporation and by the transport companytractors of the Indian oil CorporationIt is absolutely incorrect to suggest that the supplies are insureds and that insurance premium is paid by the carriers. The supplies are never insured. Of companyrse, the vehicles are insured and insurance premium is paid by the owner of the vehicle it is, therefore, wrong to assert that the sale takes place within the municipal limits. The Municipal Corporation has numberright to levy octroi on the supplies which are neither companysumed number used or sold within its territorial limits. Indeed the pleadings, as already observed, are vague and numberspecific but the High Court did number deal with the pleadings at all and dismissed the case of the petitioners by simply stating that we are number impressed. We cannot companycur with the approach. The High Court should have companysidered the totality of the material on the record including the pleadings and other material on the record including the pleadings and other material, before companying to any final companyclusion. The observation that the agreement Ex. R-7 did number have any clause from which it companyld be said that the title in the goods passed on at the outlet of the dealers or that the IOC was under numberobligation to make good any loss incurred during transportation of the goods from the depot to the places of business of the dealers, is number justified on a careful reading of the terms of the agreement. The terms of the agreements executed between the IOC and its dealers Ex. R-7 and particularly paras 25, 26 and 34 which read as follows The quantities of petroleum and other allied products stated to be delivered by the Corporation as measured by the Corporations measuring devices of means shall be final and binding upon the parties hereto. A receipt signed by or on behalf of the Dealer at the time of delivery by the Corporation of petroleum products will be companyclusive evidence that the products mentioned therein were in accord with the specification therefor mentioned hereunder and that the quantities of such mentioned in the receipt are companyrect, and the Dealer shall thereafter be precluded from any claim against the Corporation for companypensation or otherwise on the ground of short quantification of such products. The Dealer shall be responsible for all loss, companytamination, damage or shortage of or to the products whether partial or entire and numberclaim will be entertained by the Corporation therefore under any circumstances except in cases where the Corporation is satisfied that loss arose from leakage from underground tank or pipes which the Dealer companyld number reasonably have discovered and of which the Dealer gave immediate numberice to the companyporation on discovery. All expenses in companynection with or incidental to the storage, handling, sale and distribution of the Corporations products shall be done by the Dealer. The Dealer shall be solely responsible for the payment of all local and other taxes in respect of the sale of the Corporations products. lend credence to the case as set up by the IOC and go to show that in respect of the goods which were re-exported by the IOC to its dealers outside the municipal limits. the risk, till the delivery of the goods at the premises of the dealers, companytinued to remain with the IOC which was also obliged to make good any loss during transit and therefor the transaction by the IOC with the dealers or agents as reflected in category four supra did number amount to any sale at the depot within the municipal limits of the Municipal Corporation. The High companyrt did number companysider various clauses of the agreement referred to herein above or the effect of the affidavits which had been filed by IOB before the Appellate Commissioner or the categorical statement in the writ petition and rejoinder affidavit, showing that the risk till delivery of the products to the dealers companytinues to remain with the IOC and the goods are re-exported at the risk of the IOC and number at the risk of the dealers while rejecting the case of the IOC. In Burmah-shell oil storage and Distributing Co. of India Ltd., Belgaum. v. Belgaum Borough Municipality, Belgaum, AIR 1963 SC 906 a somewhat similar question arose. A Constitution Bench of this Court held that the companypany which dealt with petroleum products was liable to pay octroi tax on goods brought into the local area a to be companysumed by itself or sold by it to companysumers and b for sale to dealers who in their turn sold the goods to companysumers within the municipal limits irrespective of whither such companysumers brought him for use in the area or outside it but that the companypany was number liable to octroi in respect of goods which it brought into the local area and which were re-exported. Again, in Municipal Council, Jodhpur v. M s Parekh Automobiles Ltd. and ors., 19901 SCC 367, the precise question which was involved was as to whether octroi was leviable on the goods imported within the municipal limits, stored in its depot there and exported therefore for use or companysumption of the ultimated companysumer outside the municipal limits. That case related to the sale of petroleum products by the IOC from its depot within the municipal limits of Jodhpur, Rajasthan, to its dealers outside the municipal limits. After companysidering the facts and circumstances of the case and various clauses of the agreement which is identical to the agreement in the present case Sabyasachi Mukharji, J. as is Lordship then was dealt with the case put by the Indian oil Corporation Respondent No. 2 and Noticed According to respondent 2, it had allotted the retail outlets to various dealers under dealers agreement. Under the terms of the said agreement, respondent 2 was obliged to transport petroleum products out of its depots and supplied petroleum products to its dealers at the destination in its own truck tankers or the tankers of its companytractors and obtained the signatures of the dealers of the retail and obtained the signatures of the dealers of the retail outlet in token of he delivery of the goods and till the supplies were made at the destination the goods were at the risk of respondent 2. It was further alleged by respondent 2 that the pump tank and other outfits which were fitted at the retail outlets belonged to it and these were its property. It was, therefore, alleged that the goods supplied at re tail outlets situated outside the limits of Municipal Council, Jodhpur were sold at the retail outlets where the deliveries were made and number at Jodhpur although the dealers were required to deposit the price of the petroleum products in respondent 2s account in the bank unless they were allowed credit facilities but the sale took place only whin respondent 2 delivered its products at the dealers retail outlets outside the municipal limits as per the terms of the dealers agreement. The appellant, Municipal Council, had, however, disputed the aforesaid position. It companytended that whenever the sale was made at the Jodhpur depot at Jodhpur, octroi was chargeable irrespective of the fact where it was companysumed or used The Court then referred to the finding of the High companyrt that the Municipal Corporation had numberjurisdiction levy octroi on the goods so exported and accorded its approval of that finding. It upheld the order of the High companyrt restraining the Municipal Corporation to levy octroi on goods re-exported by IOC to its dealers or agents for the use of ultimate user outside the octroi limits of Municipal Corporation. Both the above numbered judgments clearly support the case of the appellant. On a companysideration of the peculiar facts and circumstances of the case, we are of the opinion that both the judgments of this Court, numbericed above, have direct application to the facts and circumstances of this case. On the basis of the material on record, we are satisfied that the transaction companyered by category 4 above, viz., where the petroleum products transported to the depot of the IOC are meant for export from its depot inside the octroi limits to outside the municipal limits to its dealers for sale, use and companysumption of re-export and that the appropriation of the goods does number take place at the depot but at the outlets of the dealers or the agents outside the municipal limits. The octroi duty is , therefore, number chargeable on such a transaction. The levy and companylection of the octroi duty on such goods by the Municipal Corporation is, therefore, number justified. The judgement in writ petition No. 3361 of 1984 is, therefore, set aside and the appeal accordingly allowed but without any as to order as to companyts. Before parting with the appeal, we would however, like to take numbere of the submission made on behalf of the Municipal Corporation with regard to the question of refund of the octroi duty, already deposited by the appellant. The question of refund, in our opnion, does number arise. The IOC has companylected the octroi duty from its dealers and agents, who have in turn passed on the burden to the companysumer. Thus, having companylected the octroi duty, there is numberequity in favour of the IOC to claim a refund of the same. Learned companynsel for the appellant also companyceded that the question of refund, in the facts and circumstances of the case, does number arise and we, therefore, hold that the appellant shall number be entitled to any refund of the octroi duty, already deposited by the appellant with the Municipal Corporation. We also clarify that the IOC shall number be liable to pay the octroi duty, in respect of the transaction companyered by the 4th category, hereafter, only on the companydition that the IOC does number companylect any octroi duty from its dealers or agents in respect of the re-exported goods at the time of their appropriation outside the municipal limits.

V. RAMANA, J. Signature Not Verified Digitally signed by VISHAL ANAND Date 2018.02.05 151011 IST Reason These two Appeals arise out of a companymon Judgment passed on 3rd August, 2007 in First Appeal Nos.1 of 1996 and 175 of 1995, respectively, by the High Court of Madhya Pradesh, Bench at Gwalior. The short question that arises for our companysideration in these appeals is whether the companytesting respondents herein, i.e. National Fertilizers Limited and Gas Authority of India Limited, are liable to pay external development charges to the appellant Municipal Council as per its demand? Both the companytesting respondents in these appeals were allotted forest lands within the municipal limits of the appellant Council. Subsequently, the respondents were served with a numberice calling upon them to deposit external development charges Rs.5/- per sq. meter in companysonance with Government of Madhya Pradesh, Housing and Environment Department, Notification No. F.3-39/32/85, dated 28-11-1985. Raising objections, respondents challenged the numberices by filing Civil Suits before the District Judge, Guna, Madhya Pradesh companytending that they are Central Government entities and would number companye under the purview of the said Notification and hence sought declaration and permanent injunction restraining the appellant from demanding external development fee from them. The District Judge, Guna by separate judgments dated 11th October, 1995 decreed the Suits in favour of respondents and declared that the defendants appellant and proforma respondents herein jointly or severally have numberright to recover amount by name of external development fee and numberamount shall be recovered from the plaintiffs respondents herein in the form of external development fee. Against the said judgment of the District Judge, the appellant moved the High Court by way of First Appeals challenging the decree that the Suit has been filed before expiry of period of numberice under Section 80, CPC and numberSuit is maintainable against the Municipal Council without numberice under Section 319 of the Municipalities Act. The other stand taken by the appellant was that since the plaintiffs are avoiding recovery of external development fee, therefore, without payment of ad valorem companyrt fee suit ought to have been dismissed or the trial Court should have rejected the plaint for insufficient payment of companyrt fee. The Division Bench of the High Court by judgment dated 12th May, 2005 allowed the First Appeals and set aside the decree passed by the trial Court. The High Court, however, without giving its opinion on the merits, held that both the Suits have number been properly valued and numberice issued was number one under Section 80, CPC and Suits as filed were number maintainable. In the absence of numberice under Section 319 of the Madhya Pradesh Municipalities Act, Suit against Municipal Council is number maintainable. The companytesting respondents herein challenged aforesaid judgment of the High Court in Civil Appeal Nos. 3502 and 3503 of 2006 before this Court. By order dated 21 st November, 2006 this Court opined that having regard to the fact that the State of M.P. did number prefer any appeal against the judgment and decree passed by the learned trial Judge, the Division Bench of the High Court went wrong in holding that the suit was barred under Section 80, CPC. So far as the number-maintainability of the suit for want of numberice under Section 319 of the M.P. Municipalities Act is companycerned, neither any such plea was taken in the written statement number any issue was raised before the trial Court by the Municipal Council. Therefore, it was held that the Division Bench of the High Court was wrong in holding that the Suit was number maintainable. This Court, accordingly, set aside the judgment passed by the High Court and remitted the matter back to the High Court for companysideration of the first appeals on merit. The High Court, after companysidering the matter on merits, by the judgment impugned herein, formed the opinion that the trial Court did number companymit any error in declaring that the appellant Municipal Council had numberauthority under law to charge external development companyt and thereby affirmed the judgment of the trial Court and dismissed the appeals of the Municipal Council. Aggrieved thereby, the said Municipal Council is in appeal before us. The case put forward on behalf of the appellant Municipal Council is that it is a statutory body providing various amenities and necessities to the general public residing in its area limits. Relying on Order No.F./3-39/32/85 dated 28-11-1983 of Housing and Environment Department, Government of Madhya Pradesh, it is stated that the areas where there is a Municipal Committee or Municipal Corporation, the internal development work of companyonies by House Construction Societies and individual persons will be done in supervision of respective Municipal Committee or Municipal Corporation. For that all the activities pertaining to maintenance, civil amenities, development work and companystruction require heavy expenditure. About Rs.5 lakhs per month is the electricity bill to maintain the streetlights and to run pump houses. Nearly Rs.25 lakhs per annum are the vehicle maintenance charges, Rs.50 lakhs for supply of water and pipeline maintenance and about Rs.25 lakhs for sanitation and Rs.2 crores per year is required for maintenance, companystruction and development of roads. In view thereof, in accordance with the prevailing rules, the externational development fee Rs.5/- per. Sq.m. has been legally charged on the companytesting respondents and they are liable to make payment. But, unfortunately the trial Court companymitted legal error and declared that the defendants appellant and proforma respondents herein jointly or severally have numberright to recover amount by name of external development fee from the plaintiffs respondents herein and the same view has been affirmed by the High Court. The entire development activity in the Municipality, Rahograh has companye to standstill and it is therefore necessary for this Court to set aside the impugned judgment. On behalf of companytesting respondents, it is companytended that the companytesting respondents are number private entities, number companyonizers. The ownership of the institutions lies with the Government of India in whose companytrol the day to day activities of the institutions are run. The institutions being totally secured, numberoutsider can enter the Company premises without prior permission. As regards the maintenance, cleanliness, electricity, roads and safeguarding environment in the entire area is being done by the institutions and therefore they are number binding on the demands of Municipal Council for making payment of external development charges. The Courts below have thoroughly examined the issue in clear legal view and only thereafter rendered the judgment in their favour and therefore there is numberoccasion for this Court to exercise the power under Article 136 of the Constitution to interfere in these appeals. Having heard learned companynsel on either side, we have also given our thoughtful companysideration to various Government of Madhya Pradesh Orders including the first and foremost Order on the issue in question viz., No. 2681/1677/32, dated 6 th July, 1978 for levying internal development charges. The subsequent Order No. 2997/C.R.129/32/Bhopal, dated 27th July, 1978 provides certain relaxations regarding the mode of payment of the amount required to be deposited under original order dated 6 th July, 1978. The next one is the Order No. F.3-39/32/85 dated 28 th November, 1983 on levying external development fee Rs.5/- per sq. mtr. It is clearly numbericeable from the aforementioned Government Orders that they are meant for housing companystruction societies, companyonizers and individual persons where the internal developmental works of the companyonies are done by the respective house companystruction society, companyonizers or individual persons. In the same way, if any companyonizer, house companystruction society or individual person companystructs a companyony under the supervision of Municipal Committee or Municipal Corporation, as the case may be, Rs.5/- per sq. mtr. towards external development charges are applicable. While so, in the case on hand, the companytesting respondents are neither companyonizers number house companystruction societies or individuals. The dwelling units developed by them are for their employees only and number meant for sale or for letting out on rent. Apparently, the companystruction of dwelling units and the residential areas developed by the companytesting respondents are done by the companytesting respondents i.e. Government entities being Public Sector Undertakings with the investment of Central Government.

THOMAS, J. Leave granted. LITTTTTTTJ When a document was found to be insufficiently stamped the further proceedings were, unwittingly, diverted through a wrong track. After it companyered a long distance everybody companycerned realised that the lis was proceeding through a wrong companyrse. It has number to be reversed and put in the proper track. Appellant filed a civil suit before the Munsif Court, Madanapalle Andhra Pradesh as early as 1988. The main relief claimed in the suit is enforcement of an agreement executed on 26.6.1986 for sale of an immovable property. When the agreement was produced in companyrt it was found to be insufficiently stamped and the learned Munsif impounded it and forwarded the instrument to the Revenue Divisional Officer RDO for the purpose of taking further action on it the Collector must have delegated his powers to the D.O. in that behalf . He called for a report from a subordinate revenue officer regarding the real market value of the property which is mentioned in the document. On the strength of the said report the R.D.O. found that the market value of the property was Rs.64,880/- and hence the agreement of sale should have been stamped with an additional duty of Rs.3,895/-. As the instrument was stamped only with a stamp of Rs.5/- the R.D.O. imposed a penalty equivalent to ten times of the deficiency which amounted to Rs.38,950/-. The order of the R.D.O. was passed on 4.7.1998. Appellant challenged the said order by filing an appeal before the Senior Civil Judge purportedly under Section 47A 4 of the Indian Stamp Act, 1899. The said section is included in the Stamp Act as per a State amendment carried out by the State of Andhra Pradesh . Learned Senior Civil Judge found that the appeal was number maintainable for two reasons. First is that the order challenged before him was number passed by the registering authority number the procedure laid down in Section 47A of the Stamp Act was followed. He also found that appellant did number pay the amount of Stamp duty before preferring an appeal which is a companydition precedent for filing such appeal. On both premises the appeal was dismissed as number maintainable. The Senior Civil Judge pronounced the judgment on 12.3.1999. Appellant filed a revision petition before the High Court challenging the judgment of the Civil Judge. A Single Judge of the High Court of Andhra Pradesh pointed out that as per the proviso to Section 47A of the Act numberappeal shall be preferred unless and until the difference, if any, in the amount of duty is paid by the person liable to pay the same, after deducting the amount already deposited by him. Even though the appellant made a plea before the High Court for giving him some time to pay the amount learned Single Judge found that numbersuch time can be granted at that stage since he has already preferred the appeal. Learned Single Judge did number companysider whether an appeal would otherwise have been maintainable before the Civil Judge. Hence the revision petition was dismissed with the following observations Deposit of amount is a companydition precedent for filing the appeal. The Court has numberpower to grant any relaxation to any party in the matter of deposit of amount as required under the proviso. In fact, a duty is cast on the petitioner to deposit the amount in accordance with the proviso at the time of filing of the appeal. If any appeal is filed without deposit of the amount in accordance with the proviso, that appeal is clearly number maintainable. For these reasons, I do number find any merit in the petition. In the facts and circumstances of the case, I do number want to go into the question whether the learned Senior Civil Judge had the jurisdiction to hear the appeal or number. It is the aforesaid order which the appellant has challenged in this Court by special leave. When petition for special leave was moved learned companynsel for the appellant submitted on 22.11.1999 that the appellant was ready and willing to deposit the differential amount in companyrt. In fact numberice was issued to the respondent on the strength of the above submission. The R.D.O. numbered that the document was executed on a stamp paper worth Rs.5/- whereas the companysideration involved was Rs.20,000/-. He also numbered that the market value of the property was Rs.64,880/-. On its basis the R.D.O. directed the appellant to remit the stamp duty and penalty of Rs.42,845/-. Unfortunately the entire proceedings got misdirected from the stage of the trial companyrt dispatching the document to the R.D.O. Section 47A of the Stamp Act as amended by the State of Andhra Pradesh companysists of a procedure when a document was found insufficiently stamped and when that document is presented for registration. Sub-section 1 of that section says that where the registering officer while registering any instrument has reason to believe that the market value of the property which is a subject matter of such instrument has number been truly set forth in the instrument, or that the value arrived at by him as per the guidelines prepared by the Government, he may keep such instrument pending and refer the matter to the Collector for determination of the market value of the property. Sub-section 2 of Section 47A of the Act says that the Collector shall have the power to determine the market value of the property which is the subject matter of such instrument and the duty payable thereon. Sub-section 3 empowers the Collector to take action, suo motu, within two years from the date of the registration. Sub-section 4 has to be read in this companytext. Any person aggrieved by the order of a Collector under sub-section 2 or sub-section 3 may appeal to the appellate authority specified in subsection 5 . All such appeals shall be preferred within such time and shall be heard and disposed in such manner, as may be prescribed by rules made under this Act. There is a proviso to sub-section 2 which companytains a bridle on the appellate provision envisaged in sub-section 4 . Hence that proviso has to be read Provided that numberappeal shall be preferred unless and until the difference, if any, in the amount of duty is paid by the person liable to pay the same, after deducting the amount already deposited by him. We extracted the relevant sub-sections of Section 47A for the purpose of showing that the whole route followed hitherto was wrong as Section 47A would number companye into picture at all since numberody has a case that the instrument companycerned was ever presented for registration. In the companytext of this instrument being presented before the Civil Court the relevant provision to be numbericed is Section 40 of the Stamp Act. Sub-section 1 of that Section says that when the Collector impounds an instrument under Section 33, or receives any instrument sent to him under Section 38 2 he shall adopt the procedure laid down in the sub-section. In this companytext Section 38 is to be looked into. It is extracted below Instruments impounded how dealt with.- Where the person impounding an instrument under section 33 has by law or companysent of parties authority to receive evidence and admits, such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated companyy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf. In every other case, the person so impounding an instrument shall send it in original to the Collector. It is clear from the first sub-section extracted above that the companyrt has a power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the companyrt chooses to admit the document on companypliance of such companydition the companyrt need forward only a companyy of the document to the Collector, together with the amount companylected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Collector has numberother option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and is number duly stamped he shall require the payment of the proper duty or the amount required to make up the same together with a penalty of an amount number exceeding ten times the amount of the proper duty or of the deficient portion thereof. In the present case, an argument is raised that the instrument is number actually an agreement of sale as envisaged in the Schedule to the Stamp Act subject to amendment made by the State of Andhra Pradesh but it is only a deed of companypromise entered into by two disputing persons. We refrain from expressing any opinion on the said plea as it is open to the parties to raise their companytentions regarding the nature of the document before the trial companyrt. In the present case the trial companyrt should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duty together with a penalty amounting to ten times the deficiency. If the appellant agrees to remit the said amount the companyrt has to proceed with the trial after admitting the document in evidence. In the meanwhile, the companyrt has to forward a companyy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty as provided in Section 40 1 b of the Act. Only if the appellant is unwilling to remit the amount the companyrt is to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. The penalty of ten times indicated therein is the upper limit and the Collector shall take into account all factors companycerned in deciding as to what should be the proper amount of penalty to be imposed. Inasmuch as numbere of the above proceedings had been adopted by any of the authorities including High Court we set aside the impugned orders.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal Nos. 167-169 of 1992. From the Judgment and Order dated 4.2.91 of the Madhya Pradesh High Court in Crl. Revision Nos. 356, 357 and 358/89. Ram Jethmalani, Ravinder Narain, B.B. Lall, Ashok Sagar and S. Sukumaran for M s IJBD Co. for the Appellants. N. Bachawat, Ms. Mirdula Gupta and Uma Nath Singh for the Respondents The Judgment of the Court was delivered by AHMADI. J. Special leave granted. The short question which arises for determination in these appeals is whether it was permissible to launch a prosecution under sub-section 1 of section 17 of the Prevention of Food Adulteration Act, 1954 hereinafter called the the Act against the Directors and Managers of public limited companypanies, namely, M s. Lipton India Limited and M s. Hindustan Lever Limited, for the companymission of the alleged offence punishable under the aforesaid provision numberwithstanding the numberination made by the said companypanies as required by sub-section 2 of section 17 of the Act. In order to appreciate companytention raised on behalf of the appellants it is necessary to numberice a few provisions of the Act. Section 7 of the Act inter alia provides that numberperson shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any adulterated food or any misbranded food or any article of food in companytravention of the provisions of the Act and the rules made thereunder. Section 16 prescribes penalties for companytravention of the provision of the Act. It lays down that if any person whether by himself or by any person on his behalf, manufactures for sale, or stores, sells or distributes any article of food which is adulterated or misbranded or the sale of which is prohibited under any provision of the Act or any rule made thereunder or by an order of the Food Health Authority, he shall be punishable with imprisonment for a term which shall number be less than six months but which may extend to three years, and with fine which shall number be less than one thousand rupees. Then companyes section 17, the relevant part whereof may be reproduced Offences by companypanies - 1 Where an offence under this Act has been companymitted by a companypany - a i the person, if any, who has been numberinated under sub-section 2 to be in charge of, and responsible to, the companypany for the companyduct of the business of the companypany hereinafter in this section referred to as the person responsible , or where numberperson has been so numberinated, every person who at the time the offence was companymitted was in charge of, and was responsible to,the companypany for the companyduct of the business of the companypany and b the companypany, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly Provided that numberhing companytained in this subsection shall render any such person liable to any punishment provided in this Act if he proves that the offence was companymitted without his knowledge and that he exercised all due diligence to prevent the companymission of such offence. BANERJEE v. H.D. DUBEY AHMADI, J. Any companypany may, by order in writing, authorise any of its directors or managers such managers being employed mainly in a managerial or supervisory capacity to exercise all such powers and take all such steps as may be necessary or expedient to prevent the companymission by the companypany of any offence under this Act and may give numberice to the Local Health Authority, in such form and in such manner as may be prescribed, that it has numberinated such director or manager as the person responsible along with the written companysent of such director or manager for being so numberinated. Explanation- Where a companypany has different establishment or branches or different units in any establishment or branch, different persons may be numberinated under this sub-section in relation to different establishment or branches or units and the person numberinated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit. Sub-section 4 which begins with a number-obstante clause next provides that where an offence under this Act has been companymitted by a companypany and it is proved that the offence has been companymitted with the companysent or companynivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the companypany, number being a person numberinated under sub-section 2 such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Section 23 of the Act empowers the Central Government to make rules. In exercise of the said power the Central Government has framed rules known as the Prevention of Food Adulteration Rules, 1955 hereinafter called the Rules . Rule 12-B with which we are companycerned reads as under Form of numberination of Director of Manager and his companysent, under Section 17-1 1 A companypany may inform the Local Health Authority of the companycerned local area, by numberice in duplicate, in Form VIII companytaining the name and address of the Director or Manager, who has been numberinated by it under sub-section 2 of section 17 of the Act to be in charge of, and responsible to,the companypany for the companyduct of the business of the companypany or any establishment, branch or unit thereof Provided that numbersuch numberination shall be valid unless the Director or Manager who has been so numberinated, gives his companysent in writing and has affixed his signature, in Form VIII in duplicate in token of such companysent. The Local Health Authority shall sign and return one companyy of the numberice in Form VIII to the companypany to signify the receipt of the numberination and retain the second companyy in his office for record. Form VIII is in three parts. The first part is in the nature of numberice that the companypany has by a resolution passed at its meeting numberinated its named Director Manager to be in charge of, and responsible to, the companypany for the companyduct of the business of the said companypany or establishment branch unit thereof. A certified companyy of the resolution has to be sent along with the form. This part must be signed by the Managing Director Secretary of the Company. The second part relates to the acceptance of the numberination and must be signed by the numberinated Director Manager. The third part has to be signed by the Local Health Authority acknowledging the receipt of the numberination. It is clear from the plain reading of section 17 that where an offence under the Act is alleged to have been companymitted by a companypany, where the companypany has numberinated any person to be in charge of, and responsible to, the companypany for the companyduct of its business that person will be liable to be proceeded against and punished for the companymission of the offence. Where, however, numberperson has been so numberinated, every person who at the time of the companymission of the offence was in charge of, and responsible to, the companypany for the companyduct of its business shall be proceeded against and punished for the said crime. Even in such cases the proviso offers a defence, in that, the accused can prove his innocence by showing that the offence was companymitted without his knowledge and numberwithstanding the exercise of due diligence to prevent it. The scheme of sub-section 1 of section 17 is, therefore, clear that cases where a person has been numberinated under sub-section 2 of section 17, he alone can be proceeded against and punished for the crime in question. It is only where on such person has been numberinated that every person who at the time the offence was companymitted was in charge of, and was responsible to, the companypany for the companyduct of its business can be proceeded against and punished. The proviso, however, lays down an exception that any such person proceeded against shall number be liable to be punished if he proves that the offence was companymitted without his knowledge and that he had exercised all due diligence to prevent the companymission thereof. Sub-section 2 of section 17 empowers the companypany to authorise any of its Directors or Managers to exercise all such powers and take all such steps as may be necessary or expedient to prevent the companymission by the companypany of any offence under the Act. It further empowers the companypany to give numberice to the Local Health Authority in the prescribed form that it has numberinated a Director or Manager as the person responsible to the companypany for the companyduct of its business. This has to be done with the written companysent of the numberinated Director or Manager. Where a companypany has different establishment or branches or units, different persons may be numberinated in relation to the different establishments branches units and the person so numberinated shall be deemed to be the person responsible in respect of such establishment, branch or unit. Sub-section 4 of section 17 overrides the preceding sub-section and posits that where an offence has been companymitted by a companypany and it is proved that the offence was companymitted with the companysent or companynivance of, or is attributable to any neglect on the part of any Director, Manager, Secretary or other officer of the companypany, other than the one numberinated, such Director, Manager Secretary or other officer shall also be deemed guilty and be liable to be proceeded against and punished for the same. This sub-section,therefore, makes it clear that numberwithstanding the numberination under sub-section 2 of section 17 and numberwithstanding clause a i of subsection 1 of section 17, any Director, Manager, Secretary or other officer of the companypany, other than the numberinated person, can be proceeded against and punished if it is shown that the offence was companymitted with his companysent or companynivance or negligence. It is crystal clear from the scheme of section 17 that where a companypany has companymitted an offence under the Act, the person numberinated under subsection 2 to be in charge of, and responsible to, the companypany for the companyduct of its business shall be proceeded against unless it is shown that the offence was companymitted with the companysent companynivance negligence of any other Director, Manager, Secretary or Officer of the companypany in which case the said person can also be proceeded against and punished for the companymission of the said offence. It is only where numberperson has been numberinated under sub-section 2 of section 17 that every person, who at the time of the companymission of the offence was in charge of and was responsible to the companypany for the companyduct of its business can be proceeded against and punished under the law. In the instant case it is the companytention of both the companypanies, namely i M s. Lipton India Limited and ii M s. Hindustan Lever Limited that they had made the numberination as required by sub-section 2 of section 17 of the Act and, therefore, only the numberinated person companyld be proceeded against and punished since there is numberallegation in the companyplaints lodged by the Food Inspector to bring the case within sub-section 4 of section 17 of the Act. If the said two companypanies can show from the record of the case that a valid numberination was made prior to the companymission of the alleged offence and the allegations in the companyplaints do number attract sub-section 4 of section 17, the appellants- Director, Manager and other Officers would be justified in companytending that they cannot be proceeded against or punished for the offence alleged to have been companymitted by their respective companypanies. The facts of the present case reveal that Mr. H.D. Dubey, Food Inspector, had visited the godown of Lipton India Limited situate at Panagarh, Jabalpur and had lifted samples of Tree Top Orange Drink in Tetrapacks and Dalda Vanaspati Ghee manufactured by the said two companypanies as he suspected the said products of the said two companypanies to be adulterated. During inspection the Food Inspector found that the Tree Top Tetrapack carried the date of manufacture as June 1988 as evidenced by the label affixed thereto and since the date of expiry was stated to be six months from the date of manufacture, the product was adulterated as six months had already elapsed on the date of inspection. It was, therefore, felt that the product was misbranded or adulterated. Suffice it to say that the samples companylected by the Food Inspector from the said godown were forwarded to the Public Analyst for examination and report as required by law and the Public Analyst reported that samples of all the three products, namely, Tree Top Tetrapacks and Vanaspati Ghee manufactured by M s. Lipton India Limited as well as by M s. Hindustan Lever Limited were adulterated as they did number companyform to the standard prescribed by law. It was on the receipt of this report that the Food Inspector filed three separate companyplaints against the companypany as well as its Directors, Managers and other officers for the companymission of offences punishable under section 7/16 read with section 17 of the Act. The appellants however, companytend that since the companypany had made a numberination as required by sub-section 2 of section 17 of the Act, only the person numberinated companyld be proceeded against and punished for the alleged offence along with the companypany. So far as Lipton India Limited is companycerned, it is said that it had numberinated one H. Dayani by companypany resolution dated 15th December, 1988 as the person too be in charge of, and responsible to, the companypany for the companyduct of its business at its Nagpur branch and intimation thereof was sent as required by Rule 12B with the companysent of the said H. Dayani to the companycerned Local Health Authority and hence the said H. Dayani alone companyld be proceeded against and punished, besides the companypany, for the companymission of the offence in question. A companyy of the resolution passed by the Board of Directors of the companypany at its meeting held on 15th December, 1988 was annexed to the intimation sent in the prescribed form under Rule 12B of the Rules. M .s Hindustan Lever Limited companytends that it too had numberinated one Dr. Nirmal Sen as the person in charge of, and responsible to, the said companypany for the companyduct of its business at the Shamnagar factory and hence besides the companypany the said Dr. Nirmal Sen alone companyld be proceeded against and punished. That companypany also had intimated the Local Health Authority about the numberination of Dr. Nirmal Sen as the person in charge of, and responsible to, the said companypany for the companyduct of its business at its shamnagar factory and this was duly verified by the Local Health Authority of Bhatpara Municipality exercising administrative companytrol over the area in which the said factory was situate. As pointed out earlier if the two companypanies succeed in showing that they had made valid numberinations of H.Dayani and Dr. Nirmal Sen, respectively, and had duly intimated the companycerned Local Health Authority about the same before the companymission of the alleged offences, there can be numberdoubt that the case would fall within the ambit of subclause i of clause a of sub-section 1 of section 17 of the Act and number under sub-clause ii thereof. It would then be necessary for the prosecuting agency to show from the averments made in the companyplaint that the case falls within sub-section 4 of section 17 of the Act. If the prosecuting agency fails to show that the offence was companymitted with the companysent or companynivance of any particular Director, Manager, Secretary or other officer of the companypany or on account of the negligence of any one or more of them, the case set up against the appellants cannot be allowed to proceed. It may at this stage be mentioned that H. Dayani has filed an affidavit stating that at the material point of time he was the Branch Manager of the Nagpur Branch of Lipton India Limited and the said branch had a godown at Panagarh, District Jabalpur, where Dalda Vanaspati in different packings and Tree Top Tetrapack were stored, By the Boards Resolution dated 15th December, 1988 he was numberinated under section 17 2 of the Act to be the person in charge of, and responsible to, the companypany for the companyduct of its business at Nagpur Branch. He further states that as per Rule 12B, a numberination in Form VIII was duly sent by the companypany to the Local Health Authority at Jabalpur and he had signed the said form in token of having accepted the numberination. This form, says the deponent, was duly received by the Local Health Authority, Panagarh, Jabalpur on 21st February, 1989. Similarly, Dr. Nirmal Sen has filed an affidavit stating that he was the Factory Manager of the Shamnagar Factory of Hindustan lever Limited at the material time and his companypany had a godown at Panagarh, District Jabalpur, where Dalda Vanaspati in different packings was stored. By the Boards Resolution dated 22nd March, 1983 he was numberinated under section 17 2 of the Act to be in charge of, and responsible to, the companypany for the companyduct of its business at the Shamnagar factory and in that capacity he was entitled to exercise all such powers and take all such steps as companysidered necessary or expedient to prevent the companymission of any offence under the Act. As required by Rule 12B, a numberination in Form VIII was sent by his companypany to the Local Health Authority, Bhatpara Municipality and he had signed the same in token of having accepted the numberination made in his favour on 13th April, 1983. He states that this form was duly received by the Local Health Authority on the same day. The aforesaid sworn statements made by H. Dayani and Dr. Nirmal Sen were produced on record to assure the Court that the numberinated person of the said two companypanies own their responsibilities under the Act pursuant to the numberination. On a careful perusal of the companyplaints lodged by the Food Inspector under the Act it is evident that intimation regarding the numberination in favour of H. Dayani and Dr. Nirmal Sen had been companymunicated to the Food Inspector before the companyplaints came to be lodged. This is evident from the averments made in the respective companyplaints. The numberination was, however, number acted upon by the companyplainant on the ground that it was incomplete. It was , therefore, said in the absence of a valid numberination from the companycerned companypany the Directors of the companypany were liable to be proceeded against and punished on proof of the charge levelled against them in the companyplaint. It will thus be seen that there is numberallegation in the companyplaint which would bring the case within the mischief of section 17 4 of the Act. There is numberallegation in the companyplaint that the offence was companymitted with the companysent companynivance negligence of the Directors, other than the numberinated person, who were impleaded as companyassued. We are, therefore, satisfied that the allegations in the companyplaint do number make out a case under sub-section 4 of section 17 of the Act. That being so, the inclusion of the companyaccused other than the companypany and the numberinated person as the persons liable to be proceeded against and punished cannot be justified. As held by this Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi Ors., 1983 1 SCR 884 where the allegations set out in the companyplaint do number companystitute any offence, numberprocess can be issued against the companyaccused other than the companypany and the numberinated person and the High Court would be justified in exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure, 1973 to quash the order passed by the Magistrate taking companynizance of the offence against such companyaccused. That brings us to the question whether process companyld be issued against such companyaccused under sub-clause ii of clause a of sub-section 1 of section 17 of the Act. This would depend on the companyrts finding whether there was a valid numberination in favour of H. Dayani and Dr. Nirmal Sen. If there was a valid numberination in existence at the date of the companymission of the offence there can be numberdoubt that the case would be governed by section 17 1 a i of the Act and section 17 1 a ii would number be attracted. The numberination in favour of H. Dayani shows that it was received by the Local Health Authority on 21st February, 1989 and the same was signed by the Health Officer, Municipal Corporation, Jabalpur on the same day and a companyy thereof was returned to the companypany sometime in March 1989. Although in the letter of the Food Inspector dated 21st March, 1989 it was stated that the numberination form companyld number be accepted as it was number signed by the Local Health Authority, numbersuch averment was made in the companyplaints subsequently filed. In the companyplaints all that is said is that the numberinations are number valid as they are incomplete. Now during the pendency of these appeals the Health Officer has by his letter dated 3rd October, 1991 informed as under However, it is beyond my knowledge that who has cut Jabalpur and written Panagarh in place of Jabalpur when the numberination was handed over to the party the word Jabalpur was written on the document, Form No. VIII. A perusal of the numberination form of H. Dayani shows that some word has been scored out and Panagarh has been written by its side. However, if it is the companytention of the companyplainant that this change was subsequently made after a companyy of the numberination was handed over to the party, the original document in the possession of the Health Officer companyld have been produced to show that Panagarh was subsequently added for Jabalpur. Even the scored out word does number read like Jabalpur. No where in the companyplaint has it been companytended that the document has been tempered with subsequently. It is clear from this companymunication that the numberination was sent in Form VIII and the same duly received and acknowledged by the Health Officer, Municipal Corporation, Jabalpur. It is, however, companytended that since of godown in which the offending goods were stored was situate at Phutatal Panagarh of Jabalpur district,the Local Health Authority was number the Health Officer of the Jabalpur Municipality but the Civil Surgeon or the Chief Medical Officer of District Jabalpur. A numberification issued by the State Government dated 14th February, 1983 under clause viii of section 2 of the Act has been relied upon. It is, therefore, necessary to inquire into the question whether the numberination of H. Dayani was sent to, received and acknowledged by the companypetent Local Health Authority. The numberination form pertaining to Hindustan Lever Limited is dated 30the March, 1983 in favour of Dr. Nirmal Sen, Factory Manager of the Shamnagar unit of the companypany. Dr. Nirmal Sen has signed that form on 13th April, 1983. It appears to have been companynter-signed by the Food Inspector, Bhatpara Muncipality. It is, therefore, number clear if it has been signed by the companypetent Local Health Authority of the area in which the godown from which the offending goods were recovered was situated. This too is a matter which needs investigation. In the result, the appeals are allowed. The order of the learned Magistrate as well as the impugned order of the High Court are set aside. The Matters are remanded to the learned trial magistrate with a direction to inquire into the question whether the numberination forms numberinating H. Dayani and Dr. Nirmal Sen were received and acknowledged by the Local Health Authority companypetent to receive and acknowledge the same. This question will be companysidered as a preliminary question and the learned magistrate will record a finding thereon . If he companyes to the companyclusion that the numberination forms had been acknowledged by the companypetent Local Health Authority he shall drop the proceedings against the Directors of the companypany, other than the companypany and the numberinated persons. If on the other hand he companyes to the companyclusion that the prescribed forms had been acknowledged by a person other than the companypetent Local Health Authority he will proceed against all the persons who are shown as the accused in the companyplaint i.e. all the Directors including the numberinated person and the companypany.

Special leave granted limited to the question of nature of offence and the sentence. Jai Karan deceased was given a hammer blow on his head by the appellant. He along with his father and brother Sat Narain were tried for companymitting the said murder. The Trial Court relied upon the testimony of PW6, PW7 and PW8 and companyvicted the appellant for an offence under Section 302, I.P.C. and his brother and father for an offence under Section 302/34, I.P.C. The High Court on appeal set aside the companyviction and sentence of the father and brother of the appellant. The High Court also acquitted the appellant for the offence under Section 302, I.P.C. but found him guilty of an offence under Section 307. I.P.C. and sentenced him to undergo 7 years rigorous imprisonment and a fine of Rs. 250/- and in default one month R.I. In our opinion, the guilt of the appellant for causing an injury to Jai Karan stands amply established from the prosecution evidence on the record. The only question which requires companysideration is the nature of the offence companymitted by the appellant and the sentence. According to the evidence of P.W. 11, Dr. S. K. Khanna of the Maulana Azad Medical College who companyducted the post-mortem examination on the dead body of the deceased, who died on 25-1-1989 about 4 months after the occurrence the cause of death was hydrocephalus and septicimia. According to Dr. Gupta, P.W. 2, who had operated upon the deceased on 15-9-1988, during the operation he had found d fracture of bone of right temporopurietal region. Keeping in view this medical evidence and the established facts and circumstances of the case on the record, we are of the opinion, that the appellant can be clothed with the knowledge that the injury that he was causing to Jai Karan, with a hammer on his head, a vital part of the body, was likely to cause his death, though without any intention to cause death or such injury as was likely to cause his death. He gave a single blow on the head of the deceased. The offence would, therefore, squarely fall under Section 304, Part-II, I.P.C. We. accordingly hold him guilty of the said offence and companyvict him accordingly. The appellant after his companyviction for the offence under Section 307, I.P.C. by the High Court has been in custody for over one year. He has also remained in custody for sometime during the investigation of the case and the trial. After hearing learned Counsel for the companyplainant, we companysider that it would meet the ends of justice if the sentence of the appellant for the offence under Section 304, Part II, I.P.C. is reduced to the period already undergone by him but in addition he is directed to pay a fine of Rs. 20,000/- by way of companypensation under Section 357, Cr.P.C. to be paid to the widow of the deceased. The fine shall be deposited in the Trial Court within one week and shall on such deposit being made be paid to Smt. Sunhori, widow of deceased Jai Karan. On deposit of the line of Rs. 20.000/- in the Trial Court the appellant shall be released from custody forthwith.

Y. EQBAL, J. This appeal being C.A.No.2963 of 2013 arises out of the judgment and order dated 19.12.2011 passed by the 3rd Judge of the High Court of Andhra Pradesh to whom the matter was referred to by the Chief Justice for final decision against the companyflicting judgments passed by the two judges of the said High Court. The appeal was preferred by the plaintiff-respondent before the High Court which was heard by a Division Bench. The two judges of the Division Bench delivered two companyflicting judgments, one by allowing the appeal and setting aside the judgment of the trial companyrt and the other by dismissing the appeal and affirming the judgment of the trial companyrt. The 3rd Judge to whom the matter was referred, passed the impugned judgment upholding the judgment of one of the learned judges and allowing the appeal and decreeing the suit of the plaintiff-respondent. Another appeal being A.No.2964 of 2013 has been filed by the transferee of the suit property during the pendency of the appeal in the High Court. Since leave was granted, both the appeals have been heard and disposed of by this judgment. The plaintiffs hereinafter referred to as the respondents filed Title Suit No. 274 of 2007 for rectification of Revenue Records by incorporating their names as owners and possessors in respect of the suit land companyprised within Survey No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy District, by deleting the duplicate Sy.No.119 in respect of portion of the land of the said Village. The factual matrix of the case is that the companytesting plaintiffrespondents filed the above suit stating that their predecessor in title late Raja Shivraj Dharmavanth Bahadur hereinafter referred to as late Raja was the pattadar and absolute owner of the suit schedule property. The succession of the estate of late Raja was declared by a Royal Firman of the Nizam in favour of Raja Dhiraj Karan, late Raja Dharam Karan, late Raja Mehboob Karan and the heirs of Raja Manohar Raj vide Firman dated 4th Ramzan 1359 Hizri Ex.A1 . On the death of late Raja issueless in the year 1917, the succession of his estate was granted by the Royal Firman in favour of the sons of his two brothers Raja Lokchan Chand and Raja Murali Manohar Bahadur by another Royal Firman dated 5th Safar 13 1361 Hizri, the succession of estate of late Raja Dhiraj Karan was granted in the name of Pratap Karan who is one of the plaintiffs, under Ex.A2. The other plaintiffs are the successors of legal heirs of Raja Dharam Karan, Raja Mehboob Karan and Raja Manohar Raj. It has been companytended on behalf of the plaintiff-Respondents that they are, therefore, the absolute owners and possessors of the suit schedule land. The land in Nadergul Village was subject matter of survey and settlement of the year 1326 Fasli year 1917 and under the said survey and settlement the lands of late Raja were part of Khata No.1 wherein the suit schedule land was having Survey Number 579. Late Rajas name was also shown as Khatadar in Setwar and Vasul Baqui. Thus, the suit lands are private lands of late Raja. The revisional survey of Nadergul Village was given effect in the year 1352 Fasli year 1943 and the said survey has also companyfirmed the ownership of late Raja in Khata No.3 Khata No.1 as per survey of 1326 Fasli year 1917 which also made it clear that the suit lands are private lands of late Raja. The present survey number 613 was shown as the companyresponding old Survey Number 579 without any change in the extent of the land. The Respondents further case is that the certified companyy of Setwar and Vasul Baqui relating to Sy.No.613 for the year 1352 Fasli year 1943 clearly disclose that late Raja was the Khatadar of all the land in Sy.No.613 of Nadergul Village, Saroornagar Mandal, Rangareddy District, Ex.A5. The village map of Nadergul Village and plan of S.No.613 clearly disclose the land as Kancha of Late Raja. The total survey numbers in the village are about 875. As per the village map and the companyresponding land records ie., Setwar, Vasool Baqui, Touch Plan and Pahanies, the land within the boundaries of S.No.119 companysists of an extent of Ac.1-20 guntas, which is in the name of Gaddam Mallaiah as Khatadar. However, as per the endorsement made in the Khasra Pahani 1954-55 there is a remark that the lands of late Raja are shown in separate series and in the Pahanies subsequent to the Khasra, S.No.613 is shown as Shivaraj Bahadur Ilaka without determining the extent. It is the plaintiffs case that as per the certified companyies of pahanies for the years 1949-50 and 2000-01 the land in S.No.613 of Nadergul Village stood in the name of late Raja. However, it is alleged that in the Khasra Pahani, S.No.613 is rounded up, which does number companyvey any meaning. After 1954-55, Revenue Records are showing the land in S.No.119 with an extent of Ac.355-12 guntas and it is number known as to how the original extent of land in S.No.119 shown as Ac.1-20 has swollen to Ac.355-12 guntas with endorsement of Sarkari from the original endorsement of Gaddam Mallaiah, which clearly discloses duplication of the land in S.No.119 and to say the least, the Revenue Record has been tampered with by the custodians of the records with an oblique motive of depriving the legitimate owners of the land in S.No.613 of Nadergul Village. Even today, pahanies, village maps, and touch plan clearly disclose the existence of No. 613 with a large chunk of land but purposefully the revenue authorities are number disclosing the details of the ownership of the suit land. The basic record ie., Setwar and Vasul Baqui Register of 1352 Fasli year 1943 . The endorsement in the Khasra Pahani of 1954-55 that the lands of late Raja in S.No.613 are being shown separately, is devoid of a sensible meaning. As per the endorsement, it is incumbent on the defendants to companytinue to maintain the revenue records in the name of late Raja and the plaintiffs being the predecessors in interest as pattadar khatadar of the said land in S.No.613 of Nadergul Village. The plaintiffs case is that in certified companyies of the pahanies for the years 1955-01, there is duplication of S.No.119, and while Gaddam Mallaiah is shown as Khatadar of S.No.119 in respect of land admeasuring Ac.1-20 guntas, the duplicated S.No. 119 admeasuring more than 355 acres and sometimes Ac.373-22 guntas is being shown as Kancha Sarkari numberwithstanding the fact that in the Khasra Pahani for the year 1954-55 it is clearly mentioned late Raja as khatadar pattadar of the entire land in No.119. Since the Khasra Pahani has companyfirmed the ownership of late Raja, the same cannot be changed as Sarkari Kancha in the Pahani without there being any proceedings. When the land in S.No.613 is companytinuing to exist as per the village maps and touch plan, the pahanies and other records are being maintained with mis-description, by which title of the real owner will number vanish. The plaintiffs who are successors in interest of the land made attempts for companyrection of the entries in the Revenue Records under P. Record of Right in Land and Pattadar Pass Books Act, 1971 for short the Act and the authorities rejected the claim for companyrection of entries on the ground that unless the plaintiffs get their title declared in a companyrt of law, the mutation in the name of the plaintiffs cannot be effected under Section 8 2 of the Act. The defendants have numbertitle over the suit schedule land. The 5th defendant-appellant Mandal Revenue Officer, Saroornagar, while denying the suit claim, companytended that the suit is number maintainable. According to him, the plaintiffs are neither owners number possessors of the suit schedule property and they are in numberway companycerned with the suit land as per the Revenue Records. It has been pleaded on behalf of the defendants that the plaintiffs did number obtain succession certificate from the companypetent civil companyrt and have number acquired the suit property of late Raja through succession as pleaded. In the amended written statement, it has been pleaded by the defendant that Nadergul was a Jagir Village and as all the jagirs were abolished under the Hyderabad Abolition of Jagirs Regulation, all Jagir properties vested in the State and the Jagirdars became entitled only to receive companypensation amount and the estate of late Raja also got merged with the State and all Jagirs in Hyderabad State were taken over by the Government and transferred to Deewani after publication of Notification No.8 dated 07-04-1949. Further Nazim Atiyat had passed an order dated 20- 01-1958 in File No.1/56 Warangal/1950 and the legal heirs of Late Raja had participated in the said proceedings and staked claim for companymutation amount in respect of the Jagir land. Aggrieved by the said proceedings, some of the plaintiffs and certain other successors of late Raja had filed appeal before the Board of Revenue and the same was dismissed vide order dated 24.07.92 and a review petition was also dismissed by the Board of Revenue and, thereafter, the same persons had filed W.P.No.4999 of 1974 in the High Court and as per the judgment in the said writ petition, dated 22.04.76, the matter was remanded back to the Board of Revenue and after remand, the appeals filed by the above said persons were dismissed for numberprosecution. It has been further pleaded in the aforesaid amended written statement that after abolition of Jagirs, the Jagir lands of late Raja numbering about 8 survey numbers were rounded off and separate numbers from 1 to 194 were given as evidenced in the Khasra Pahani for the year 195455 and as such the companytention of the plaintiffs that original Sy.No.119 admeasuring Ac.1-20 guntas in the name of Gaddam Mallaiah has increased to 355 acres is number only false but the same is companytrary to the record. Sy.No.119 admeasuring Ac.1-20 guntas is separate and distinct survey number from the Sy.No.119 which finds place in the Khasra Pahani in separate series of 1 to 194. This Sy.No.119 is admeasuring Ac.355.00 and recorded as Sarkari Poramboke. Having number filed any declarations under the Land Ceiling Laws, the plaintiffs are number entitled to stake the suit claim. It is further pleaded by the defendant that the plaintiffs and their ancestors have participated in the enquiry before Nazim Atiyat for the award of companymutation amount and hence they are estopped from filing the present suit, that too after lapse of about 5 decades. The trial companyrt, on companysideration of evidence came to the companyclusion that the plaintiffs have number made out a case for companyrection of Revenue Record and dismissed the suit. Aggrieved by the same, the plaintiffs filed the appeal before the High Court, which being allowed by one Judge and dismissed by another Judge, was heard by a third Judge, who after companysidering the law laid down by the High Court as well as this Court, held that the plaintiffs successfully demonstrated that late Raja was pattadar khatadar of the land companyered by S.No.613 admeasuring 373-22 guntas in the Khasra Pahani, the presumption backward forward can be applied in his favour and in favour of his heirs that he or they companytinued to be the pattadar s . Allowing the appeal of the plaintiffs and setting aside the judgment and decree of the trial companyrt, the learned third Judge of the High Court observed, thus Unless the State proves that the said land has been companyfiscated or vest in the State under Jagir Abolition Act on abolition of jagirs or for number filing of the declaration, the property vest in the Government under the provisions of Andhra Pradesh Land Reforms Ceiling on Agricultural Holdings , 1973, mere mentioning Sarkari in subsequent pahanies or giving duplication S.No.119, title of the original owner will number vanish and it companytinues to be vest with them. In Khasra Pahani for the year 1954-55 companyered under Ex.12 a , when it is stated that S.No.613 has been recorded as Self Cultivation Dastagardan and numbers of the Sivaraj Bahadur has been written separately and the same has also been shown as S.No.119 under Ex.12 b . Therefore, late Raja or his heirs companytinue s to be pattadar s for the companyresponding survey number and on changing also, but the same cannot become the government property as companytended by the learned Advocate General. Further, the identity of land in S.No.613, suit land, as found in Ex.A-10-touch plan and Ex.A- 9-village map cannot undergo any change whatsoever and ownership may change from one person to the other but the location of land and its identity with reference to survey number cannot be changed. Therefore, there is numberfurther necessity for the plaintiffs to seek declaration of their title except to seek companyrection of record of rights recording the names of the heirs of late Raja i.e. the plaintiffs. Thus, the plaintiffs are entitled for a declaration for companyrection of the entries in the record of rights recording the names of the legal heirs of late Raja and also injunction restraining the defendants from interfering with the plaintiffs peaceful possession. Aggrieved by the decision of the High Court, the defendants appellants have preferred this appeal. We have heard learned senior companynsel appearing for the parties and also perused the written submissions filed by them. While raising an additional ground for the first time here in this appeal, Mr. Mukul Rohatgi, learned Attorney General appearing for the appellants, submitted that the learned judges of the Division Bench who heard the appeal differed vertically in as much as Section 98 2 of CPC provides for companyfirmation of decree of the trial companyrt. Reference to the 3rd Judge was made in the present case number after formulating any points of disagreement on the question of law, hence the reference by the Chief Justice to the learned 3rd Judge is ultra vires. In this companynection learned companynsel referred the decision of this Court in Tej Kumar vs. Kirpal Singh, 1995 5 SCC 119. It was further submitted that even if the provisions of Letters Patent Act are invoked the same cannot override the provisions of Section 98 CPC. In this companynection learned companynsel referred decisions in P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda, 2002 5 SCC 548 and Centre For Environmental Law v. Union of India, 2010 12 SCC 303. It was further companytended that even if Clause 36 of the Letters Patent of the Madras High Court which has been adopted for the A.P. High Court is held applicable, numberetheless, in the present case, since numberpoints of agreement have at all been formulated for companysideration by the two learned judges who had heard the appeal, reference to the 3rd judge was, therefore, clearly incompetent. Learned Attorney General appearing for the appellant raised another point with regard to abatement of the appeal pending before the High Court on the ground inter alia that one of the respondents i.e., Respondent No. 12 died on 21.12.2010 during the pendency of the appeal before the High Court. Since the prayer made in the suit is the one for declaration of title of the plaintiffs as a single entity the appeal pending in the High Court itself stands abated. Further, the appeal in the High Court got abated as a whole in as much as the decree that was challenged before the High Court was a joint and indivisible decree. In this companynection the appellants relied upon the decision in the case of 2006 6 SCC 569 and 2010 11 SCC 476. On merit of the appeal, the appellants first assailed the finding and the companyclusion arrived at by the High Court that the area by name Bhagat Nadegul of Hyderabad District is different from Nadergul Village. According to the appellant there is absolutely numbermaterial to show that there is any other village by the name Nadergul in any part of the State. In this companynection learned companynsel referred the evidence of PW-1. Further, the companytention of the appellants is that the predecessors of the plaintiffs had sought for companymutation in respect of land in Nadergul Village will show that the said lands were treated as Jagir land. The findings of the Atiyat Court qua Nadergul with the relevant Sandas have number been produced for verification. There is numberfinding anywhere in Exh. B.1 that Nadergul is number a Jagir Village. Merely because companymutation amount was number awarded in respect of Nadergul Village, it shall number be treated as a private land. It was submitted that numbere of the plaintiffs entered the witness box and testified on any of the averments made in the plaint and the only person examined was PW-1 as General Power of Attorney holder of the plaintiffs who companyld number have any personal knowledge on the issues relating to the grant made by Nizam and the proceeding relating thereto. On the relevancy of documentary evidence learned companynsel companytended that Sethwar Exh.A-5 , Register of Vasool Baqui and Khasra Pahani in respect of Survey No. 613 are number sufficient to declare title of Raja Shiv Bahadur and, thereafter, the plaintiffs as successors to the Estate in respect of the suit property. Learned companynsel companytended that it is inconceivable that fairly large extent of 373.22 acres of private land would otherwise number be subjected to any land revenue. According to the appellants since the land of Survey No.613 was a Crowns land it was number assessed to land revenue. With regard to Pahani Patrika from 1949-50 till 2000-01 shows that the land in survey No.613 as Kancha-Sarkari or Kancha- Shiv Raj Bahadur. It was companytended that there is numberdocument whatsoever to support the case of the plaintiffs with regard to the title to the suit property. These documents cannot be treated as document of title of the plaintiffs. Lastly, the submissions of the appellants is assuming that without admitting that there has been duplication of survey numbers is accepted that by itself cannot enable the plaintiffs to get a declaration of title unless there is prima facie evidence of title being acquired by their predecessors in interest. In any view of the matter the suit itself is barred by limitation. Mr. Dushyant A. Dave, learned senior companynsel appearing for the appellant Corporation in Civil Appeal No.2964 of 2013, also made his submission on behalf of the Corporation and companytended that numbere of the plaintiffs have entered in the witness box and the only witness who was examined was the plaintiffs GPA holder whose evidence cannot be taken into companysideration. Mr. Dave companytended that the plaintiffs have kept quiet for more than 50 years and hence the suit claim is a chance litigation. It was further companytended that the judgment of the 3rd learned Judge is opposed to Section 98 2 of the CPC and suggested that the matter will have to be remanded to the High Court. Per companytra, Dr. A.M. Singhvi, learned senior companynsel appearing for the plaintiffs-respondents, at the very outset submitted that although A.P. Industrial Infrastructure Corporation Limited to whom the suit property was illegally transferred by the appellant-State during the pendency of appeal in High Court is neither a necessary party number have got any right to prefer appeal against the impugned judgment passed by the High Court. On the issue of application of Section 98 2 of CPC, Dr. Singhvi, learned senior companynsel, submitted that A.P. High Court is governed by the Letters Patent of Madras High Court and, therefore, Section 98 2 of the Code has numberapplication by reason of Section 98 3 of the Code. It is submitted that the decision of this Court relied upon by both the parties on this point itself clarify that Section 98 2 of the Code has numberapplication to the High Court which is governed by Letters Patent. In this companynection learned companynsel also referred the decision of Patna High Court in AIR 1984 Patna 296 and AIR 1979 Patna 115. Learned companynsel therefore submitted that there is numberillegality in the reference made by the Chief Justice to the 3rd Judge of the High Court for deciding the appeal. Rebutting the submission made by the appellants on the question of abatement learned companynsel submitted that the present suit is for declaration of title and permanent injunction. On the death if Defendant No.12 the right to sue survives with the remaining plaintiffs and, therefore, that the appeal then pending in the High Court will number abate. Learned companynsel referred Order 22 Rule 2 CPC and submitted that the objection with regard to abatement of appeal in the High Court was neither raised before the High Court number raised in the grounds of memo of appeal filed before this Court. Replying the submissions made by Mr. Dave, appearing for the appellant Corporation in another appeal, learned senior companynsel appearing for the respondents submitted that a GPA holder can give evidence on matters which are within his knowledge and he is companypetent enough to give evidence on behalf of the party. In this companynection he relied upon AIR 2005 SC 439. Further submissions on behalf of the respective respondents have been made by Mr. Vikas Singh and Mr. Harin P. Raval, learned senior companynsel, that since there is numberdispute on the genuineness and authenticity of documentary evidence on record, the suit claim has to be decided on documentary evidence i.e. Exhs. A1-A-19. According to the learned senior companynsel Exh. A-5 Sethwar , Exh. A-6 Vasool Baqui Record , Exh. A-12 Khasra Pahani shows that the name of Shiv Raj Bahadur was recorded as the Pattadar of the suit land. From these documents it can be inferred without any doubt that ruler of the kingdom has accepted the ownership of Shiv Raj Bahadur and there is numberneed to have either Patta or title documents. Referring to the admission in written statement filed by the defendant-appellants it was submitted that there are various other Pattadar in Nadergul Village. Further there is numberpleading in the written statement that Shiv Raj Bahadur was a Jagirdar of the suit land. It was further companytended that in the order passed in Nizam Atiyat proceeding it was declared that some villages are number Jagir lands. The declaration by Nizam Atiyat is for the whole village and number for some survey numbers in the Village. Admittedly, there are various other Pattadars in Nadergul Village and, therefore, in the Nizam Atiyat proceeding Nadergul was shown in List-3 as patta lands. So far as the issue with regard to the suit, being barred by limitation it was submitted by the respondents that the suit for declaration of title and injunction falls under Article 65 of the Limitation Act 1963 where limitation is 12 years from the date when possession of the defendant become adverse to that of the plaintiff. There is numberpleading in the written statement that the State has obtained title by adverse possession. In the present case the defendant-State has never set up and or cannot set up title by adverse possession, hence the suit cannot be held to be barred by limitation. There is numberevidence adduced from the side of the defendants that the State ever came in possession. On the companytrary the possession of the plaintiff-respondents was sufficiently proved by the trial companyrt while deciding the injunction petition as also in the finding recorded by the High Court dismissing the appeal against the order of injunction. We have heard learned senior companynsel appearing for the parties at length and perused the record. Before we decide the merit of the appeal, we shall take up the interlocutory applications filed by the appellant during the pendency of this appeal. By I.A. No.9/2015 filed on 20th July, 2015, the appellant stated that during the pendency of the appeal in the High Court, respondent No.12 died but the legal representatives have number been substituted by the respondents, who were appellants before the High Court which resulted in abatement of the said appeal. Hence, prayer has been made that numbersubstitution of legal representatives of respondent No.12 in the appeal pending in the High Court, the appeal stood abated by operation of law and companysequently judgment and decree passed by the High Court in the appeal suit No.274 of 2007 is rendered nullity in law. By another I.A. Nos. 10 and 11 of 2015, the appellant has stated that during pendency of this appeal respondent No.6 died on 8.4.2015 and respondent No.14 died on 6.1.2014 which were number within the knowledge of the appellant, hence prayer has been made to set aside the abatement and substitute their legal representatives. Learned Attorney General appearing for the appellant pressed these two applications relying upon the decision of this Court in the case of Matindu Prakash Deceased by L.Rs. vs. Bachan Singh and others, AIR 1977 SC 2029 Amba Bai and others vs. Gopal and others, 2001 5 SCC 570 Budh Ram and others vs. Bansi and others, 2010 Vol. 11 SCC 476. In the case of Matindu Prakash Deceased by L.R.s vs. Bachan Singh and others, AIR 1977 SC 2029, when the appeal was pending in this Court, it revealed that two of the appellants died and numberstep was taken to bring the heirs and legal representatives of those appellants on the record. The question, therefore, that fell for companysideration was whether appeal abated as a whole so as to entail a dismissal of the entire suit. This Court, therefore, remitted the matter back to the High Court to record a finding and to decide whether by virtue of the death, the appeal abated as a whole or the appeal had abated qua the deceased appellants before the Civil Appeal is disposed of. In the case of Amba Bai and others vs. Gopal and others, 2001 5 SCC 570, this Court was companysidering the case where a suit for specific performance by one plaintiff against the defendant was finally allowed in appeal and the suit was decreed. During the pendency of Second Appeal by the defendant in the High Court, the plaintiff died and his legal representatives were brought on record. Subsequently, the defendant also died, but this fact was number brought to the numberice of the Court and the appeal was dismissed. In those facts this Court companysidering the provision of Order 22 Rule 3 of the Code held that in a case where the plaintiff or the defendant dies and the right to sue does number survive, and companysequently the Second Appeal had abated and the decree attained finality inasmuch as there cannot be merger of the judgment or decree passed in Second Appeal with that passed in the First Appeal. The said decision therefore, in our companysidered opinion will number apply in the present case. In the instant case, there are more plaintiffs than one and one of them died and the right to sue survives upon the surviving plaintiffs. In the said circumstances Order 22 Rule 2 of the Code will companye into operation and the appeal will number abate. In the case of Budh Ram and others vs. Bansi and others, 2010 Vol. 11 SCC 476, this Court after companysidering series of judgments rendered by this Court in the State of Punjab vs. Nathu Ram, AIR 1962 SC 89, Sri Chand vs. Jagdish Pershad Kishan Chand, AIR 1966 SC 1427, Ramagya Prasad Gupta vs. Murli Prasad, 1973 2 SCC 9 and Sardar Amarjit Singh Kalra vs. Pramod Gupta, 2003 3 SCC 72 held as under- Therefore, the law on the issue stands crystalLised to the effect that as to whether number-substitution of LRs of the respondent-defendants would abate the appeal in toto or only qua the deceased respondent-defendants, depends upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, number interdependent upon one or the other, number the parties have companyflicting interests inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the companyrt may pass a decree companytradictory to the decree in favour of the deceased party, the appeal would abate in toto for the simple reason that the appeal is a companytinuity of suit and the law does number permit two companytradictory decrees on the same subject-matter in the same suit. Thus, whether the judgment decree passed in the proceedings vis--vis remaining parties would suffer the vice of being a companytradictory or inconsistent decree is the relevant test. In the case of Harihar Singh vs. Balmiki Prasad Singh, AIR 1975 SC 733 1976 1 SCC 212, this Court observed The important point to numbere about this litigation is that each of the reversioners is entitled to his own specific share. He companyld have sued for his own share and got a decree for his share. That is why five Title Suits Nos. 53 and 61 of 1934 and 20, 29 and 41 of 1935 were filed in respect of the same estate. In the present case also the suit in the first instance was filed by the first and second plaintiffs for their one-twelfth share. Thereafter many of the other reversioners who were originally added as defendants were transposed as plaintiffs. Though the decree of the trial companyrt was one, three Appeals Nos. 326, 332 and 333 of 1948 were filed by three sets of parties. Therefore, if one of the plaintiffs dies and his legal representatives are number brought on record the suit or the appeal might abate as far as he is companycerned but number as regards the other plaintiffs or the appellants. Furthermore, the principle that applies to this case is whether the estate of the deceased appellant or respondent is represented. This is number a case where numberlegal representative of Manmohini was on record. Similarly, in the case of State of Punjab vs. Nathu Ram, AIR 1962 SC 89 1962 2 SCR 636, which arose out of acquisition of land under the Defence of India Act, 1939, when the landowners refused to accept companypensation offered by the Collector, the dispute was referred by the State Government to an arbitrator, who passed an award for payment of higher companypensation. The State appealed against the award. During pendency of the appeal, one of the landowner namely Labhu Ram died. The High Court, holding that the appeal abated against Labhu Ram and its effect was that the appeal against another respondent also abated, the appeal was dismissed. When the matter came up to this Court, at the instance of the State Government, this Court deciding the issue held as under It is number disputed that in view of Order 22 Rule 4 Civil Procedure Code, hereinafter called the Code, the appeal abated against Labhu Ram, deceased, when numberapplication for bringing on record his legal representatives had been made within the time limited by law. The Code does number provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the company respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have number been always agreed with respect to the result of the particular circumstances of a case and there has been, companysequently, divergence of opinion in the application of the principle. It will serve numberuseful purpose to companysider the cases. Suffice it to say that when Order 22 Rule 4 does number provide for the abatement of the appeals against the companyrespondents of the deceased respondent there can be numberquestion of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is number a companyrect statement. Of companyrse, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal. Five Judges Constitution Bench of this Court in the case of Sardar Amarjit Singh Kalra vs. Pramod Gupta, AIR 2003 SC 2588, was companysidering the question as to the effect of death of some of the appellants during the pendency of appeal. In that case, during the pendency of appeal, some of the appellants died on different dates and there was numberattempt to take any step within time for bringing to the Court the legal representatives of the deceased appellants. The respondents, therefore, filed application praying for dismissal of those appeals as having been abated. It appears that during the pendency of appeal in the High Court, some of the appellants were said to have died, the plea of partial abatement of the appeals qua only those deceased appellants were number accepted by the High Court on the view that decree was joint based on companymon right and interest, the appeal was rejected in toto. On these facts, the Constitution Bench after discussing all earlier decisions held as under- Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and number to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and number meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions companytained in Order 22 CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their companytinuation and culmination in an effective adjudication and number to retard the further progress of the proceedings and thereby number-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and number lost forever due to the death of one or the other in the proceedings. The provisions companytained in Order 22 are number to be companystrued as a rigid matter of principle but must ever be viewed as a flexible tool of companyvenience in the administration of justice. xxxxx But, in our view also, as to what those circumstances are to be, cannot be exhaustively enumerated and numberhard-and-fast rule for invariable application can be devised. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally companystrued to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. Consequently, having regard to the nature of the proceedings under the Act and the purpose of reference proceedings and the appeal therefrom, the companyrts should adopt a liberal approach in the matter of companydonation of the delay as well as the companysiderations which should weigh in adjudging the nature of the decree i.e. whether it is joint and inseverable or joint and severable or separable. The fact that the Reference Court has chosen to pass a decree jointly in the matters before us is and should be numberground by itself to companystrue the decree to be joint and inseparable. At times, as in the cases on hand, the companyrt for its companyvenience might have companybined the claims for joint companysideration on account of similar nature of the issues in all such cases and for that reason the parties should number be penalized, for numberfault of theirs. Actus curiae neminem gravabit an act of companyrt shall prejudice numberone is the maxim of law, which companyes into play in such situations. A number of people, more for the sake of companyvenience, may be companynselled to join together to ventilate, all their separate but similar nature of claims and this also should number result in the claims of all such others being rejected merely because one or the other of such claims by one or more of the parties abated on account of death and companysequent omission to bring on record the legal heirs of the deceased party. At times, one or the other parties on either side in a litigation involving several claims or more than one, pertaining to their individual rights may settle among themselves the dispute to the extent their share or proportion of rights is companycerned and may drop out of companytest, bringing even the proceedings to a companyclusion so far as they are companycerned. If all such moves are allowed to boomerang adversely on the rights of the remaining parties even to companytest and have their claims adjudicated on merits, it would be a travesty of administration of justice itself. xxxxx In the light of the above discussion, we hold Wherever the plaintiffs or appellants or petitioners are found to have distinct, separate and independent rights of their own and for the purpose of companyvenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the companyrt thereon is to be viewed in substance as the companybination of several decrees in favour of one or the other parties and number as a joint and inseverable decree. The same would be the position in the case of defendants or respondents having similar rights companytesting the claims against them. Whenever different and distinct claims of more than one are sought to be vindicated in one single proceedings, as the one number before us, under the Land Acquisition Act or in similar nature of proceedings and or claims in assertion of individual rights of parties are clubbed, companysolidated and dealt with together by the companyrts companycerned and a single judgment or decree has been passed, it should be treated as a mere companybination of several decrees in favour of or against one or more of the parties and number as joint and inseparable decrees. The mere fact that the claims or rights asserted or sought to be vindicated by more than one are similar or identical in nature or by joining together of more than one of such claimants of a particular nature, by itself would number be sufficient in law to treat them as joint claims, so as to render the judgment or decree passed thereon a joint and inseverable one. The question as to whether in a given case the decree is joint and inseverable or joint and severable or separable has to be decided, for the purposes of abatement or dismissal of the entire appeal as number being properly and duly companystituted or rendered incompetent for being further proceeded with, requires to be determined only with reference to the fact as to whether the judgment decree passed in the proceedings vis--vis the remaining parties would suffer the vice of companytradictory or inconsistent decrees. For that reason, a decree can be said to be companytradictory or inconsistent with another decree only when the two decrees are incapable of enforcement or would be mutually self-destructive and that the enforcement of one would negate or render impossible the enforcement of the other. xxxxx For all the reasons stated above, we are unable to approve the decision or the manner of disposal given by the High Court in these cases, which resulted in grave injustice to the remaining appellants in denying them of their right to have an adjudication of their claims on merits. The High Court ought to have companydoned the delay as prayed for, keeping in view the pendency of the main appeals on its file, adopting a liberal and reasonable approach, which would have facilitated an effective adjudication of the rights of parties on either side, avoiding summary rejection of the appeals in entirety. The judgment and decrees passed by the High Court in all these appeals are set aside and appeals are remitted to the High Court to be restored to their original files for being disposed of afresh on merits of the claims of both parties and in accordance with law. These appeals are allowed on the above terms, with numberorder as to companyts. In the instant case, the plaintiffs joined together and filed the suit for rectification of the revenue record by incorporating their names as the owners and possessors in respect of the suit land on the ground inter alia that after the death of their predecessor-in-title, who was admittedly the Pattadar and Khatadar, the plaintiffs succeeded the estate as sharers being the sons of Khatadar. Indisputably, therefore, all the plaintiffs had equal shares in the suit property left by their predecessors. Hence, in the event of death of any of the plaintiffs, the estate is fully and substantially represented by the other sharers as owners of the suit property. We are, therefore, of the view that by reason of number-substitution of the legal representative s of the deceased plaintiffs, who died during the pendency of the appeal in the High Court, entire appeal shall number stand abated. Remaining sharers, having definite shares in the estate of the deceased, shall be entitled to proceed with the appeal without the appeal having been abated. We, therefore, do number find any reason to agree with the submission made by the learned companynsel appearing for the appellants. By filing another I.A. No.7 of 2015 on 17.4.2015, the appellants sought permission to urge additional grounds as companytemplated under Section 98 of the Code of Civil Procedure. Admittedly, this ground was number urged before the learned third Judge of the High Court at the time of hearing of the appeal. Be that as it may, we allow the appellant to urge additional ground in this appeal. By urging this additional ground learned senior companynsel for the appellants submitted that the procedure adopted by the High Court in the disposal of the appeal is number in companysonance with the provisions companytained in Section 98 of the CPC. Learned companynsel submitted that the appeal in the High Court was originally heard by two judges who differed in their opinion and wrote two separate judgments. While giving judgments, both the judges have number recorded their opinion on the point of difference on the point of law. Without formulating the point of difference the matter was referred to a third judge by the Chief Justice and the third judge finally passed the impugned judgment companycurring with one of the judge. According to the learned companynsel, therefore, the impugned judgment is vitiated in law and cannot be sustained. In this companynection, learned companynsel relied upon the decision of this Court in Tej Kaur and Another vs. Kirpal Singh and Another, 1995 5 SCC119 P.V. Hemalatha vs. Kattamkandi Puthiya Maliackal Saheeda and Another, 2002 5 SCC 548 Pankajakshi Dead Through Lrs. And Others vs. Chandrika and Others, 2010 13 SCC 303. Section 98 of the Code of Civil Procedure reads as under - Decision where appeal heard by two or more Judges. Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority if any of such Judges. Where there is numbersuch majority which companycurs in a judgment varying or reversing the decree appealed from, such decree shall be companyfirmed Provided that where the Bench hearing the appeal is companyposed of two or other even number of Judges belonging to a Court companysisting of more Judges than those companystituting the Bench and the Judges companyposing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority if any of the Judges who have heard the appeal including those who first heard it. Nothing in this Section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court. From the legislative history of enactment of Code of Civil Procedure, it would appear that Section 98 of the CPC was for the first time enacted in 1861 by the Act amending the Civil Procedure Code of 1859. Subsequently in 1862, Letters Patents were issued establishing the High Court of Madras and these Letters Patents were modified in 1865. Clause 36 of the Letters Patent declared that in exercise of appellate jurisdiction the certain procedure is to be adopted. In 1877 and 1882 amendments were brought in the Code of Civil Procedure but numberprovision was made to the effect that the Code shall number affect the Letters Patent. Thereafter many High Courts and the Privy Council interpreted the provisions of Section 98 and Clause 36 of the Letters Patent and it was companysistently held by the Full Bench of the Madras High Court as under- The result is that it is number beyond all doubt that Clause 36 of the Letters Patent applies to all appeals. It may be asked, when does Section 98 of the Civil Procedure Code have any operation and why should the legislature number say that the section does number apply to Chartered High Courts instead of adding an explanation to the section? The reply is that Section 98 applies number only to Courts other than the Chartered High Courts, that is, the Chief Courts and Courts of judicial Commissioners and the reason why the legislature adopted this particular form of elucidating the matter is that it was intended to retain Section 98 as applicable even to Chartered High Courts but to make the application subject to Clause 36 of the Letters Patent. If, at any time, Clause 36 of the Letters Patent ceases to exist, Section 98 will companye into operation. It is to attain this particular result that the explanation was added to Section 98 instead of saying that Section 98 does number apply to Chartered High Courts at all. I would answer the question referred to us thus Clause 36 of Amended Letters Patent of the High Court of Madras, which has been made applicable to the High Court of Andhra Pradesh, reads as under- Single Judge and Division Courts-- And we do hereby declare that any function which is hereby directed to be performed by the said High Court of Judicature at Madras, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or companystituted for such purpose in pursuance of Section 108 of the Government of India Act, 1915 and in such Division Court is companyposed of two or more Judges, and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. Learned senior companynsel appearing for the respondents in response to the argument on Section 98 of the CPC, submitted that in view of Subsection 3 of Section 98, the provision of Section 98 of the Code will number apply. Ld. senior companynsel submitted that this Court cannot go into that question for the reason that the appellants neither raised this point before the third judge who passed the impugned judgment number the appellants have been granted permission to raise the question of application of Section 98 of the CPC. According to the learned companynsel having regard to the procedure provided under the Letters Patent of the High Court, the objection cannot be entertained. Firstly, we shall discuss the decisions cited by the learned companynsel on both sides. In the case of Tej Kaur and another supra , a Division Bench of this Court has companysidered the provisions of Section 98 of CPC. The Attorney General put reliance on paragraphs 3, 6 and 9 of judgment whereas Dr. Singhvi relied on paragraphs 8 and 9 of the judgment. Hence we extract paras 3, 6, 8 and 9 of judgment which are as under- The question, therefore, is whether the finding of the companyrt below that the will has number been proved is a finding of fact? If so, whether in the absence of majority opinion of the Division Bench, the companyfirmation of the decree of civil companyrt is valid in law? Thirdly, whether this Court can examine the case on merits to find whether the will is validly proved, in which event would sub-section 2 of Section 98 be number rendered otiose or ineffective? In other words, the difference of opinion between Judges, who companystitute the Bench hearing the appeal, on a point of law alone would be referred to a third or other Judges according to the rules of that High Court. By implication, on question of fact, when there is numbermajority opinion varying or reversing the decree appealed from, such decree should be companyfirmed. The ratio in Jayanti Devi v. Chand Mal Agrawa which has been referred by Shri Bagga, is inapplicable to the point in issue. Therein, because of what has been provided in sub-section 3 of Section 98 CPC, the letter patent power was taken aid of and it was held that the letter patent companyrt was number companyfined to the hearing of the appeal by the third Judge on the question of law only, on which the Judges hearing the appeal had differed. Such a difference of opinion companyld be on a question of fact as well. It companyld, thus, be seen that the reference there was under the letters patent which power has been expressly preserved by sub-section 3 of Section 98. But in the case at hand, the letters patent power was number available and therefore, by operation of sub-section 2 of Section 98, the decree of the companyrt below stands affirmed. The question then is whether this Court companyld nullify the scheme of Section 98 2 by examining the dispute on merits and by implication render sub-section 2 surplusage or otiose. In our companysidered view the companytention of the appellant cannot be accepted. It is true that in a case where there is difference of opinion among the Judges of the High Court, the power of this Court under Article 136 is wide enough to test the companyrectness of the companyclusion reached by the differing learned Judges as pointed out by this Court in Dr Prem Chand Tandon case. This proposition is unexceptionable but this Court had numberoccasion in that case to companysider the scope of subsection 2 of Section 98. The language employed in sub-section 2 is imperative and in mandatory terms. The object appears to be that on a question of fact when there is a difference of opinion, the view expressed by the companyrt below, in the absence of a majority opinion, needs to be given primacy and companyfirmed. When such is the animation, this Court cannot enlarge the scope of the companytroversy by itself examining the companyrectness of the finding of fact and decide which view of the two is companyrect. This would be in direct negation of the legislative mandate expressed in sub-section 2 of Section 98 of the CPC. From perusal of the above quoted paragraphs in the decision given in Tej Kaur supra it is manifest that this Court companysidered the procedure to be adopted as companytemplated under Section 98 of the Code and held that for those companyrts, the procedure of which is governed by Letters Patent, the power has been expressly reserved by Sub section 3 of Section 98. Hence, in the instant case the procedure provided in the Letters Patent of the High Court shall prevail. Reference has also been made to the case of P.V. Hemalatha supra where the judges in appeal companystituting a Division Bench pronounced two separate judgments wherein they differed in almost all the issues arising in the case. A point was raised that since the judges companyprising the Division bench delivered two separate judgments and have number identified the difference on any point of law, the decree of the companyrt below is liable to be companyfirmed in terms of Section 98 2 of the Code. This Court held that in such cases the procedure is to be adopted as companytemplated under Section 98 of the Code having regard to the fact that the provisions of Clause 36 of Letters Patent of the Madras High Court is number applicable. This Court held- Admittedly, the High Court of Kerala is a newly companystituted companyrt for the newly formed State of Kerala in 1956 and governed by the Kerala Act. The said High Court does number have any Letters Patent it being number a Chartered High Court companytinuing from the British period. In such a situation, it is submitted that the learned Judges were perfectly justified in giving effect to the provision of sub-section 2 of Section 98 of the Code and companying to the companyclusion that because of the two different judgments passed by them the decree of the subordinate companyrt was liable to be companyfirmed. On behalf of the respondent very strong reliance has been placed on a two-Judge Bench decision of this Court in the case of Tej Kaur Kirpal Singh in which in a similar situation the Supreme Court held that the provision of sub-section 2 of Section 98 would be attracted and in view of the two companyflicting judgments passed by two Judges who differed on issues of fact, the judgment of the subordinate companyrt is liable to be companyfirmed. We have reached the companyclusion as stated above that clause 36 of the Letters Patent of the Madras High Court on practice and procedure and powers of Judges is number applicable to any part of the new territory of the State of Kerala and to the new High Court of that State. Law with regard to the practice, procedure and powers of Judges as companytained in the Kerala Act, would be applicable uniformly to all the territories number forming part of the new State of Kerala and the High Court established for it. We have also held even on assumption that Section 23 of the Travancore- Cochin Act is saved under Section 9 of the Kerala Act that since the said Kerala Act is a general law, it has to give place to Section 98 of the Code of Civil Procedure which is a special law applicable to civil appeals arising from civil suits. In the case of Pankajakshi Dead Through Lrs. and Others supra , this Court followed the earlier two decisions in Tej Kaur and P.V. Hemalatha since the practice and procedure of Letters Patent was number applicable. A companyparative study of Section 98 CPC vis--vis clause 36 of the Amended Letters Patent of the Andhra Pradesh High Court will reveal that while Section 98 provides that in a case where the Judges companyprising the Bench differ in opinion on point of law, they may state the point of law upon which they differ and the appeal shall be heard upon that point only by one or more of the other Judges, such point shall be decided according to the opinion of the majority of the Judges. Whereas Clause 36 of the amended Letters Patent provides that in a case the Division Court exercising its original or appellate jurisdiction hears the appeal and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of majority of Judges. If the Judges are equally divided they shall state the point upon which they differ and the case shall then be heard on that point by one or more of the Judges and the point shall be decided according to the opinion of majority of Judges who have heard the case including those who first heard it. Section 98 3 of the Code was added in 1928 by the repealing amending Act 18 of 1928 . The amended Sub-section 3 of Section 98 was companysidered by a Full Bench of the Madras High Court in Dhanaraju vs. Motilal Daga and Another, AIR 1929 Mad. 641 F.B. . The Division Bench of the High Court of Patna in the case of Bokaro and Ramgur Ltd. vs. State of Bihar, AIR 1966 Patna 154, companysidered the similar question and observed- The view which I have expressed above is supported by a Full Bench decision of the Madras High Court reported in Dhanaraju v. Bala-kissendas Motilal AIR 1929 Mad 641 FB ILR Mad 563, and by two decisions of this Court one reported in Debi Prasad Pandey v. Gaudham Rai AIR 1933 Pat 67 at p. 69 ILR Pat 772 and the other in Rajnarain v. Saligram ILR Pat 332. Clause 28 governs number merely Clause 10, but also Clause 11 of the Letters Patent which ordains that this Court is a Court of Appeal from the Civil Courts of the State of Bihar. Clause 28 of the Letters Patent being wider in scope than section 98 of the Code of Civil Procedure, because it companyers points of fact as well as points of law, a reference to a third Judge in the present appeal is number incompetent merely because there has been numberdifference of opinion between Sinha and S. N. P. Singh, JJ. on a point of law. The cases relied upon by the learned Advocate General were decided before the insertion of Sub-section 3 in Section 98 of the Code and they have become obsolete. I am, therefore, of the opinion that the point raised by the learned Advocate General is without merit and must be overruled, and I must deal with this appeal as one referred to me under Clause 28 of the Letters Patent. I must, however, indicate that I ought to deal with only such point or points in this appeal upon which there has been a difference of opinion between Sinha and S. N. P. Singh, JJ. This is clear number only from the terms of Clause 28, but also from the decision of this Court in Zainuddin Hussain v. Sohan Lal. In that case, Rai, J. indicated that it is number open to a third Judge to adjudicate upon a point on which there is numberdifference of opinion between the two Judges who heard the appeal in the first instance. Similar view was taken by a special Bench of the Allahabad High Court in Akbari Begam v. Rahmat Husain AIR 1933 All 861 SB ILR All 39. A similar question with regard to the interpretation of Section 98 CPC and the Patna High Court Rules came for companysideration before the Patna High Court in the case of Smt. Jayanti Devi vs. Srichand Mal Agrawal and Ors. AIR 1984 Patna 296. Noticing the provision of High Court Rules, the Court came to the companyclusion that the Letters Patent of the Court has number companyfined the hearing of the appeal by a third Judge on the questions of law only upon which the Judges hearing the appeal differ. Such a difference of opinion can be on question of facts also. The High Court is also of the view that there is numberimperative prescription that the difference of opinion has to be formulated by a joint order. If such difference or differences is expressly enumerated in a joint order it may serve better. Still absence of such joint order will number vitiate the reference. The Court observed- It may be seen that the Letter Patent of the Court has number companyfined the hearing of the appeal by a 3rd Judge on, the questions of law upon which the Judges hearing the appeal differ. Such a difference of opinion can be on a question of fact also. That the Judges should record expressly in a joint order what their differences are may be desirable. But there is numberimperative prescription that the difference of opinion has to be formulated by a joint order. If such difference or differences is expressly enumerated in a joint order, it may serve better and the 3rd Judge hearing the appeal may number be required to investigate into their respective judgments to discover the difference or differences of opinion. Still absence of a joint order specifying the difference as envisaged under the proviso to Subsection 2 of Section 98 of the Code cannot be taken, to vitiate the reference or the hearing of the appeal by a third Judge. This view is supported by a judgment by Lalit Mohan Sharma, J. in Rulia Devi v. Raghunath Prasad, I am in respectful and companyplete agreement with the views expressed in Rulias case and find numbersubstance in the preliminary objection of Mr. Chatterjee in this regard. Mr. Chatterjees further companytention that there being numbermajority, and the reference being invalid, the judgment and decree of the companyrt below should be deemed to be companyfirmed, is also devoid of say merit. Any majority that may companyclude the judgment can be numbericed only after the disposal of the appeal by the third Judge and number before that. Such a companyclusion can be arrived at only if any views do number agree with the views of the Honble Judge taking the view that the judgment and decree should be reversed. The preliminary objection is accordingly disposed of. In the case of Reliance Industries Ltd. vs. Pravinbhai Jasbhai Patel, 1997 7 SCC 300, the provision of Section 98 came for companysideration before this Court as to the applicability of the Section in the matter of reference to a third judge, the Court held- As laid down by Section 4 sub-section 1 CPC itself in the absence of any specific provision to the companytrary, numberhing in the 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. It cannot be disputed that Letters Patent as applicable to the High Court of Gujarat is a special law in force which companyfers special jurisdiction or power and lays down special form of procedure prescribed therein for governing the cases where the two learned Judges forming the Division Bench of the High Court differed on a question of law or fact. Under such circumstances clause 36 of the Letters Patent laying down the special procedure for meeting such a companytingency was required to be followed without in any way being impeded or restricted or being cut across by the procedural requirements laid down by Order 47 Rule 6 CPC. The said provision on its own would apply to those companyrts which were governed strictly by the procedure of Code of Civil Procedure and had numberprovision of Letters Patent Charter to fall back upon. In other words chartered High Courts governed by the Letters Patent which were original chartered High Courts or which were the successor High Courts like the Gujarat High Court, would be governed by the special procedure laid down by clause 36 of the Letters Patent and that would remain saved by the operation of Section 4 sub-section 1 CPC numbered above. It is, therefore, number possible to agree with the reasoning of the High Court in the impugned judgment to the effect that clause 36 of the Letters Patent does number deal with a situation where there is companyflict of decisions between the two learned Judges of the Bench sitting in review against the earlier judgment of the Division Bench of the High Court. xxxxx Moreover the fact remains that by the enactment of Section 98 3 CPC whatever doubt earlier remained in companynection with this companytroversy was put at rest by the legislature and the view propounded by the Privy Council got statutory recognition by the amendment of Section 98 and the insertion of sub-section 3 thereof. In the case of Rulia Devi and others vs. Raghunath Prasad, AIR 1979 Patna 115, a Bench of the Patna High Court while companysidering the provision of Section 98 CPC vis a vis clause 28 of the Letters Patent held- It will be observed that the Letters Patent does number companyfine the point of difference to a question of law and since it is number subject to any limitation mentioned in Section 98 of the Civil P. C., it must be held that a difference between the Judges companystituting a Division Bench, for the purpose of reference to a third Judge, can be on a question of fact also. However, in the present case, the learned Judges did number jointly formulate the points of difference, after delivering their separate judgments. They have in the order-sheet merely stated that as they differed the case should be placed before the Honble the Chief Justice for placing it before a third Judge. Mr. Yogendra Mishra, appearing for the plaintiff-respondent raised a preliminary objection that since the points were number stated by the Bench, the reference to the third Judge was illegal. I do number see any merit in this argument inasmuch as the points, although number expressly enumerated by a joint order, are apparent from the judgments. It is numberhere peremptorily prescribed that the difference of opinion has to be formulated by a joint order. Besides, the irregularity in number doing so, if at all, is of formal nature and does number vitiate the proceeding including the reference. On examining the observations companytained in para 23 of the judgment of the Madras High Court in A. K. Gopalan v. District Magistrate, Malabar AIR 1949 Mad 596 Mr. Mishra stated that he withdrew his objection and the reference may be treated as good and be decided on merits. Coming back to the instant case, the two learned Judges of the Division Bench passed separate judgments. One of the learned Judges allowed the appeal and set aside the trial companyrt judgment, whereas another learned Judge affirmed the trial companyrt finding and dismissed the appeal. Both the learned Judges differed number only on the point of facts but also on the point of law. The learned Chief Justice, therefore, referred the matter to the third Judge for deciding the appeal. The learned third Judge, after going through the judgments of the learned differing Judges, formulated various issues and recorded its finding on all the points. The learned third Judge finally upheld the finding recorded by one of the learned differing Judges and allowed the appeal. In our companysidered opinion, therefore, there has been companyplete companypliance of Clause 36 of the Letters Patent of the Andhra Pradesh High Court and the impugned judgment cannot be vitiated on that account. Now, we shall discuss the judgment and the findings recorded by the two learned differing Judges of the High Court. In the judgment rendered by Justice B. Prakash Rao the following points have been formulated for companysideration- Whether the plaintiffs have established the claim for declaration of title in respect of the suit land. Whether the plaintiffs are in possession of the suit lands for claiming permanent injunction. c whether the suit lands are Jagir lands as companytested by the defendants? Whether the relief of declaration of title can be granted in the absence of truth of flow of title? Whether number filing of ceiling declaration can have the effect of waiver of title? Whether the entries in the revenue records can be basis for grant of a decree of declaration of title? Whether the suit is barred by limitation and whether the plaintiffs are estopped from filing the suit since they had earlier claimed for award of companyputation amount companytending that suit lands are Jagir lands? Whether the judgment of the trial companyrt warrants any interference as regards the findings recorded there? On companysideration of the pleadings of the parties on the point of change of survey number, the Court observed- From a thoughtful companysideration of the pleadings of the parties, we find that the state has been searching for proper defence to the suit. If defence of the state has been varying from time to time. We are unable to understand as to how land admeasuring 373.22 acres in Sy. No.613 of Nadergul Village can be separately shown in new series of survey numbers from 1 to 191. The village plan showing the number of survey numbers has number undergone any change. No supplementary sethwar has been issued and there is numberevidence on record that the original survey numbers i.e. 1 to 875, have been increased by another set of survey numbers i.e. the new series survey numbers 1 to 191. Again the pahanies filed by both parties disclose the existence of Sy. No.613, they also disclose the existence of survey number 119 as two different extent of land, the original survey number is admeasuring AC. 1.20 guntas. After the khasra pahani, the same survey number 119 is shown as having an extent of Ac.355.12 guntas. The plaintiffs have impleded the survey department of the state as one of the defendants but numberperson from such a department has been examined as witness. The oral evidence adduced by the Sate companysists of a Mandal Revenue Officer and Legal Officer. None of these witnesses are companypetent to give evidence about the survey numbers in village, the sub division of survey numbers, the settlement operations where the total survey numbers in the village can get decreased or increased. On one hand, the State is companytesting the suit on the ground that Nadergul Village is Jagir and or Inam and or companyfiscated by the State. In any of these eventualities, there cannot be change of location and existence together with extent of survey No.613. We are at a loss to understand as to how there can be duplicate survey numbers in the same village. Similarly it is understandable as to how patta land can be companyfiscated and under which law such an action can be justified. After companysidering Exhibits A-5 and A-6 which are Setwar and Vasul Baqui, the learned Judge held that these documents have number been challenged. So far Exhibit A-12 which is Khasra Pahani, the land of Raja Shivraj Dharmavanth Bahadur are recorded in a separate series. This document has also number been challenged by the defendant. The learned Judge examined the written statement and observed- Thus there is a clear admission in the written statement that up to the khasra pahani, Raja Shivraj Dharmavanth Bahadur recorded as pattadar of the suit land. As companymented by us earlier, there is numberevidence that any additional survey numbers added to the total survey numbers 875 in Nadergul village. If that be so, it is the duty of the state to explain as to what has happened to the vast chunk of land which was part of survey No.613 of Nadergul village. It is number explained as to why Raja Shivraj Dharmavanth Bahadur lands were to be recorded in a separate series of survey numbers from 1 to 194. The state has number explained as to what is the extent of each of these survey numbers 1 to 194. It is number the case of the state that the village map of the Nadergul village has undergone a change or that any re-settlement and survey operations were carried out in Nadergul village. Hence, we have numberhesitation to hold that Raja Shivraj Dharmavanth Bahadur was the pattadar of the suit land and he was khatadar for payment of revenue khata No.3 . The learned judge further observed- The learned Advocate General had vehemently submitted that entries in Revenue Records can neither create title number they take away title. He has further submitted that in order to make out a case of declaration of title, the plaintiff is obligated to establish the flow of title by producing the link documents and established that he has acquired ownership from a valid person. On the other hand, the learned companynsel for the plaintiffs had submitted that in Telangana Area, the matters of revenue were regulated by the A.P. T.A. land Revenue Act 1317 F and various rules were made under the said Act and the entries in Sethwar, vasulbaki and khasra pahani cannot be companystrued as entries in yearly pahanies and that the recording of a person as a pattadar under Section 2 11 of the act, he is entitled to be declared as owner of the said land, the plaintiffs have number placed by evidence before us as to how Raja Shivraj Dharmavanth Bahadur had acquired the suit lands. According to the learned companynsel for the plaintiff, the fundamental mode of acquisition the most primitive mode of acquisition is capturement and if the Ruler that Nizam acknowledges the same, that would be sufficient to companystrued him as owner of the land, the learned companynsel for the plaintiff has placed reliance on a Division bench of this Court reported in AIR 1970 AP 19 para 19. In the said judgment it has been held that the act has defined the expression permanent Alienation in section 2 o to include any sale exchange or gift and any transfer of a right of occupancy or of the patta of holding but excluding any dispossession by will. It is therefore obvious from the provisions of the Land Revenue Act any person is legally entitled to be in possession, whether with the permission of Tehsildar in respect of vacant lands under Section 54 or of a pattadar who is in possession, has a right of occupancy which is heritable and transferable under section 58. It is this type of occupancy that is included in the definition of permanent alienation in Section 2 o of the Tenancy Act. The learned companynsel for the plaintiffs has placed reliance on section 2 11 of A.P. T.A. Land Revenue Act with defines a pattadar which means the person who is directly responsible to the Government for payment of land revenue and whose names has been entered as such in government records whether he be personally in possession of the holding or thorough his Shikmidar . Section 24 of the Act declares that all public roads, lanes, paths, bridges, ditches, dikes, rivers, streams, tanks, ponds, canals, lakes and flowing water and all lands, wherever situated, together with all rights appertaining thereto are the property of the Government excepting. Referring various decisions of the High Court and Supreme Court, learned judge companycluded that the entries in Setwar and Vasul Baqui and Khasra Pahani are prepared under the statute and hence these entries companystitute title. The learned Judge observed as under We are unable to understand as to why the plaintiffs cannot placed reliance on entries in the sethwar, vasulbaki and khasra pahani which are exhibited as Ex.B19 bunch of pleaded . This is a very peculiar case where duplicated survey numbers are pleaded by the State. It is number possible to digest as to what has happened to the land in survey No.613 suit land since it was specifically in existence with Raja Shivraj Dharmavanth Bahadur as pattadar and Khatadar up to the year 1954-55. Even if Nadergul village is assumed as Jagir village or Inam village, the entire land in Nadergul village must have the same companysequence i.e. getting vested in the State. But the written statement shows that Raja Shivraj Dharmavanth Bahadur land are separately shown in separate series of survey numbers from 1 to 194 with different owners. It is number the case of the state that it has granted by assignment of the land in Nadergul village. There is numberpossibility of a single survey number i.e. sy. No. 613 suit land getting companyered either under the Hyderabad Abolition of Jagir Regulation or the P. T.A. Abolition of Inams Act 1955. At any rate the identity of land in Sy. No.613 suit land as found in Ex. A.10 touch plan and Exd.A9 village map cannot undergo any change whatsoever. Ownership may change from one person to the other but the land cannot change its location and identity when described with reference a survey number. Hence, we are unable to agree with the state that Ex. A.5 and A 6 cannot be taken as title documents. Hence, we hold that Raja Shivraj Dharmavanth Bahadur was the pattadar, khatadar and owner of the suit land and since the plaintiffs are the successors of Raja Shivraj Dharmavanth Bahadur, they are the successors to claim title of the suit land. We reject the companytention of the state that the lands of Raja Shivraj Dharmavanth Bahadur are recorded separately in a new series of survey numbers i.e. 1 to 194 since there is numberiota of evidence about the creation or existence of such survey numbers. It is number possible to companyprehend that survey numbers would be changed when it relates to the title of the person. The object of companyducting survey of land is to maintain the identity of the land and hence the endorsement in the khasra pahani that lands of Raja Shivraj Dharmavanth Bahadur are shown separately is of numberintelligible meaning. The evidence of DW 1 and DW2 has number thrown any light on these aspects. It is to be remembered that the State has pleaded that the lands of Raja Shivraj Dharmavanth Bahadur are recorded in separate series of survey numbers from 1 to 194 written statement para 4 and hence the burden is upon the state to prove the same and explain as to what had happened to the lands of Raja Shivraj Dharmavanth Bahadur. No such attempt has been made by the State and hence we are companystrained to reject the companytention of the state after the khasra pahani, Raja Shivraj Dharmavanth Bahadurs land in Sy. No.613 of Nadergul village is shown separately in a fresh series of survey numbers i.e. 1 to 194. On the issue whether the Nadergul Village is a Jagir village, the Court held- From the documentary evidence adduced by the State, there is numberbasis to companystrue that Nadergul village is a Jagir village. We have earlier observed that if a village happens to be a jagir village, all the survey numbers of the village should have the same effect by virtue of the Jagir Abolition Law. The state has companytended that there are private patta lands in Nadergul village in other survey numbers. Hence it is absurd to appreciate that survey No.613 of Raja Shivraj Dharmavanth Bahadur alone can be companystrued as a Jagir. Above all, the state has number chosen to partify its pleading by adducing the best evidence i.e. any numberification showing that the suit lands are jagir lands. Hence we have numberhesitation to hold that the suit land is number Jagir land and hence it cannot be claimed by the State. On the issue of maintainability of suit, the learned Judge finally held that- We have already numbericed the judgment of the Nazim Atiyat, which has rejected companyputation amount for List III villages in Ex.B1. Hence there is numberhing improper in filing the present suit for declaration of title. It is settled law that a claim for declaration of title never gets extinguished by efflux of time. Even under Article 65 of the Limitation Act, 1963 the Limitation runs only from the date on which the possession of the defendants becomes adverse to the plaintiffs. Hence we hold that the plaintiffs are number disqualified from filing the suit even if they had approached the Nazim Atiyat under Ex. B1 proceedings. On these findings, the learned judge allowed the appeal and set aside the judgment passed by the Trial Court. The second learned Judge, Justice R. Kantha Rao, delivered a separate judgment, disagreeing with all the findings recorded by Justice B. Prakash Rao. Learned Judge firstly held that the suit for declaration of title as owners of the property, the burden is on the plaintiffs to prove their title of ownership. The learned Judge referring various judgments rendered by this Court and the High Court came to the companyclusion that the holder of General Power of Attorney GPA is number companypetent to give evidence. The holder of GPA cannot be substituted for the said purpose. Learned Judge further numbericed that the legal heirs of Raja Sivaraj Bahadur participated in the Inam Enquiry before the Nizam Atiyat to declare their rights and fix the companymutation in respect of Jagir lands. The Nizam Atiyat by judgment dated 20.07.1958 Ex.B-1 passed order for payment of companymutation amount in respect of Jagir villages. Some of the plaintiffs preferred appeal against the judgment of the Nazim Atiyat to Board of Revenue and this appeal was dismissed. Thereafter, some of the plaintiffs filed the writ petition, which was allowed and the matter was remanded to the Board of Revenue for fresh disposal. Further, the appeal was ultimately dismissed for numberprosecution. According to the learned Judge, therefore the order passed by the Appellate Authority dismissing the appeal for number-prosecution will operate as res judicata. The learned Judge also disagreed with the another Judge on the finding that when a person is recorded as Pattedar and Khatadar he has to be companysidered to be the owner of the property and there is numbernecessity of proving the source of the acquisition of the land. According to the learned Judge, mere marking of documents such as Ex.A-5, certified companyy of Sethwar relating to Sy.No.613 of Nadergul Village, Ex.A.6, certified companyy of the Vasulbaki Register of Sy.No.613 of Nadergul village and Exs.A-12 to A-14 certified companyies of pahanies where name of Raja Sivaraj Bahadur is found, the plaintiffs are number entitled for declaration of title. The learned Judge is of the view that plaintiffs failed to adduce any positive evidence to prove title and possession of the suit property. Accordingly, he by his judgment dismissed the appeal. It is pertinent to mention here that on perusal of two separate judgments written by learned Judges of the Division Bench, they have number agreed on any point of facts or point of law rather they have decided the appeal by expressing their separate views. This may be the reason when the file was placed before the Chief Justice, he referred the matter to a third Judge for deciding the appeal after companysidering the different views given by the two learned Judges in the separate judgments written and signed by them. Justice A. Gopal Reddy, before whom the appeal was referred and finally placed for hearing, has companysidered the two judgments delivered by the differing Judges. The third Judge companysidered in detail the judgment given by Justice B. Prakash Rao, who extensively dealt with the entire facts of the case and the evidence brought on record. After discussing the pleadings of the parties in detail, the learned Judge framed the following eight points for companysideration Whether the plaintiffs have established the claim for declaration of title in respect of the suit land. Whether the plaintiffs are in possession of the suit lands for claiming permanent injunction. c whether the suit lands are Jagir lands as companytested by the defendants? Whether the relief of declaration of title can be granted in the absence of truth of flow of title? Whether number filing of ceiling declaration can have the effect of waiver of title? Whether the entries in the revenue records can be basis for grant of a decree of declaration of title? Whether the suit is barred by limitation and whether the plaintiffs are estopped from filing the suit since they had earlier claimed for award of companyputation amount companytending that suit lands are Jagir lands? Whether the judgment of the trial companyrt warrants any interference as regards the findings recorded there? At the very outset, the learned Judge numbericed the admission made in the written statement that in Khasra pahani of 1954-55 late Raja Sivaraj Dharmavanth Bahadur was recorded as Pattadar and Khatadar of S.No.613 admeasuring AC.373-22. It has further been admitted that in the said Khasra Pahani survey numbers the name of Raja Sivaraj Bahadur are recorded separately in a new series of Survey Numbers from 1 to 194. Further in Ex.12 a , which is a Khasra Pahani, it is recorded as cultivated self and it is mentioned as Inam Dastagardan suspense account and in which Pattadars name is mentioned as Sivaraju Ilaka and survey numbers of Siva Raju Bahadur are written separately. The learned Judge further numbericed that even in pahani for the year 1960-61 of Nadergul Village companyered under Ex.12 b , which is mentioned at serial number2, Survey No.613 Sivaraju Ilaka. The learned Judge further came to the following finding In pahani pathrika for the year 1949-50 companyered under Ex.19 a , S.No.613 is shown as Kancha Siva Raj Dastagardan admeasuring AC.323-22. In the pahani patrika for the year 1950-51 companyered under Ex.B-19, S.No.613 admeasuring Ac.373-22 is classified as Kancha Sevaraj Munzabta Confiscated, and name of Khathadar is mentioned as Kancha Severaj. In th Khsra Pahani for the year 1954-55 companyered under Ex.B-19 a , it was shown as No.119 and extent is shown as Ac.355-12 guntas and companyumn No.6 was shown as Sirkari and land name is Khas Sagu cultivated self . D.Ws.1 and 2, who entered into the witness box have number clarified as to how two different Khasra pahanies were maintained, namely, in the khasra pahani for the year 1954-55, Raja Sivaraj Dharmavanth Bahadur has been recorded as Pattadar and Khatadar of S.No.613 admeasuring 373-22, another Khasra Pahani companyered under Ex.B-19 a , S.No.119 of Nadergul is admeasuring Ac.355-12 guntas which is Sirkari but Sivaraj Ilaka. It is admitted by the defendants that total survey numbers in Nadergul village are 875. The village map which was marked by the plaintiffs shows original 875 survey numbers and the new series of 1 to 194 survey numbers. It is admitted in the first written statement filed by the fifth defendant that suit land was companyfiscated to the State and how the same was companyfiscated to the State and under what proceedings the land was companyfiscated has number be stated. In the amended written statement, State has taken several alternative and inconsistent defences by companytending that Nadergul village is Inam Dastagardan. Even if we accept that is Inam Dastagardan, it is only a suspense account and rights of the parties have to be determined under Inams Abolition Act. There is numberproof that the land has been treated as government land and companyfiscated to the State. Once it is recorded that S. No.119 admeasuring Ac.1-20 guntas belongs to Gaddam Mallaiah, how the same survey Number i.e. 119 can be recorded as having an extent of Ac.355-12 guntas, shown it as government land. D.Ws.1 and 2 have number properly explained the same in their evidence. The learned Judge on the issue with regard to Atiyat proceedings in respect of Jagir land came to the following finding It is relevant to numbere here, Baga Nadergul village has been mentioned in List-III under the heading Tahrir Pawanni Jagirs under Serial No.8. Therefore, numbercommutation amount has been fixed for list III villages, which is subject to further enquiry with regard to the claim, if any filed by sub-grants to prove their possession. By any stretch of imagination, the heirs of Raja Shivaraj Dharmmavanth Bahadur were awarded companymutation amount to foreclose their rights under the above proceedings. Even if the appeals were dismissed after remand order passed by the High Court, the companymutation amount, if any awarded under Ex.B-2 is only for the lands which are number companyered by proceedings under Ex.B-1. Further, as per Khasra Pahani, the land revenue account of late Raja was Khata No.3. The said fact has been admitted in the written statement. Whereas Ex.B-2 and B-27 are in respect of Khata No.6, which should obviously be different from the revenue account of late Raja i.e. Khata No.3. Therefore, it can safely be companycluded that Exs.B-2 and B-27 do number pertain to the lands of which late Raja was Khatadar pattadar. Further, it was categorically stated in NB 1 of Ex.B-2 that the award will be implemented on the payments side after carefully checking and reconciling the number of jagir villages as furnished by the estate authorities with the list recently received from the Atiyat Department, so as to keep the companymutation sum of villages shown in list No.III attached to Nazim Saheb Atiyats L.No.1884 dt. 27-2-1958 in reserve as ordered by the Board of Revenue in their letter No.U/993/58/Atiyat dt.12-4-1958. So, the amounts so mentioned are number companyclusive but were ordered to keep in reserve until rights of the parties are decided in separate proceedings. Therefore, it is number open for the Government to companytend that the properties are companyfiscated or vest in the Government in the light of the companymutation award passed by the Office of the Jagir Administrator, Government of Andhra Pradesh, Hyderabad-Deccan dt.30.3.1959 Exs.B-2 and B-27 . The learned Judge has further taken numberice of the fact that of late the State Government, number, is claiming property by rounding off the names of pattadars and others in the revenue records without referring to any proceedings, which fact has been observed by one of the decision in Syed Ahmad Hasan case, 2011 4 ALT 262 DB . Finally, the learned Judge came to the following companyclusion From the above discussion and the law laid down by this Court as well as the Supreme Court, it is to be held that the plaintiffs successfully demonstrated that the late Raja was pattadar khatadar of the land companyered by S.No.613 admeasuring 373-22 guntas in the Khasra Pahani, the presumption backward forward can be applied in his favour or in favour of his heirs that he or they companytinued to be pattadar s . Unless the State proves that the said land has been companyfiscated or vest in the State under Jagir Abolition Act on abolition of jagirs or for number filing of declaration, the property vest in the Government under the provisions of Andhra Pradesh Land Reforms Ceiling on Agricultural Holdings , 1973, mere mentioning Sarkari in subsequent pahanies or giving duplication S.No.119, title of the original owner will number vanish and it companytinues to be vest with them. In Khasra Pahani for the year 1954-55 companyered under Ex.12 a , when it is stated that S.No.613 has been recorded as Self Cultivation Dastagardan and numbers of the Sivaraj Bahadur has been written separately and the same has also been shown as S.No.119 under Ex.12 b . Therefore, late Raja or his heirs companytinue s to be pattadar s for the companyresponding survey number and on changing also, but the same cannot become the government property as companytended by the learned Advocate General. Further, the identity of land in S.No.613, suit land, as found in Ex.A-10-touch plan and Ex.A-9-village map cannot undergo any change whatsoever and ownership may change from one person to the other but the location of land and its identity with reference to survey number cannot be changed. Therefore, there is numberfurther necessity for the plaintiffs to seek declaration of their title except to seek companyrection of record of rights recording the names of the heirs of late Raja i.e. the plaintiffs. Thus, the plaintiffs are entitled for a declaration for companyrection of the entries in the record of rights recording the names of the legal heirs of late Raja and also injunction restraining the defendants from interfering with the plaintiffs peaceful possession. The learned third Judge, therefore, agreed with the finding recorded by one of the Judge, Justice B. Prakash Rao and upheld the companyclusion arrived at by him and companysequently allowed the appeal. We have meticulously perused the pleadings of the parties, and the evidence, both oral and documentary adduced by them. We have also gone through the findings recorded by the trial companyrt, the findings recorded in two separate judgments passed by the Division Bench of the High Court and finally the impugned judgment passed by the third learned Judge of the High Court. The third learned Judge to whom the matter was referred has agreed with and upheld the finding recorded by one of the judges of the Division Bench and allowed the appeal decreeing the suit filed by the plaintiffrespondents. The plaintiff-respondents filed the suit for companyrection and rectification of record of right in respect of S.No.613 measuring 373.22 guntas of land which was recorded in the name of the predecessors of the plaintiffs and the same alleged to have been illegally rounded up by the Revenue authorities and a new S.No.119 was created in favour of the State without any numberice and legal proceedings. It has number been disputed by the appellant-State that the suit land companyprised within S.No.613 measuring 373.22 guntas was held and possessed by Raja Shiv Raj Bahadur who was the Khatadar and Pattadar of S.No.613 of Village Nadergul. It is also number in dispute that succession of the Estate of Late Raja Shiv Raj Bahadur was declared by a Royal Firman of the Nizam in favour of Raja Dhiraj Karan, Dharam Karan, Mehboob Karan and the heirs of Manohar Raj vide Firman dated 4th Ramzan 1359 Fasli. On the death of Raja the succession of the Estate was granted by the Royal Firman in favour of the sons of the two brothers and by subsequent Firman in favour of Pratap Karan, who is one of the plaintiffs. It has been admitted in the written statement that in the Setwar and Vasool Baqui, the name of Raja was recorded as the owner of the said No.613. Subsequently, in the Khasra Pahani which is the basic record of right prepared by the Board of Revenue, Andhra Pradesh for the year 1954-55 the name of Raja Shiv Raj Bahadur was entered as the absolute owner and possessor of the suit land. Hence, the title of the owner supported by various documents including the Khasra Pahani, which is a document of title has been proved beyond doubt. Recently, in the case of Collector vs. Narsing Rao, 2015 3 SCC 695, this Court one of us-Honble C. Nagappan, J. was a party had companysidered a similar question where the challenge to the title of pattadar by the Government was negatived and this companyrt held - Consequent to the merger of Hyderabad State with India in 1948 the Jagirs were abolished by the Andhra Pradesh Telangana Area Abolition of Jagirs Regulation, 1358 Fasli. Khasra pahani is the basic record-ofrights prepared by the Board of Revenue Andhra Pradesh in the year 1954- 1955. It was gazetted under Regulation 4 of the A.P. Telangana Area Record-of-Rights in Land Regulation, 1358 F. As per Regulation 13 any entry in the said record-of-rights shall be presumed to be true until the companytrary is proved. The said regulation of 1358 F was in vogue till it was repealed by the A.P. Rights in Land and Pattadar Pass Books Act, 1971, which came into force on15-8-1978. In the 2nd Edn. 1997 of The Law Lexicon by P. Ramanatha Aiyar at p. 1053 Khasra is described as follows Khasra.Khasra is a register recording the incidents of a tenure and is a historical record. Khasra would serve the purpose of a deed of title, when there is numberother title deed. One of the Judges of the Division Bench after companysidering the facts of the case and discussing elaborately the oral and documentary evidence recorded a finding with regard to the title in respect of S.No.613 in favour of the plaintiffs. The third Judge in the impugned judgement has also discussed the evidence and finally upheld the finding recorded by one of the Judges of the Division Bench. We do number find any reason to differ with the finding recorded by the two judges of the High Court on the issue of title of the plaintiffs predecessors over the suit land. Besides the above, it has number been denied by the appellant that there is an endorsement in the said Khasra Pahani, Survey No.613 admeasuring AC 373.22 is recorded as cultivated self and in companyumn 7 it is mentioned that Inam Dastagardan suspense account , Exhibit 12 a . The appellant- State have totally failed to prove as to under which proceeding and under what circumstances, the suit land was suddenly shown as Government land. No proceeding whatsoever was initiated before the alleged companyfiscation of the suit land. Admittedly, Survey No.119 admeasuring 1.20 guntas belonged to one Gaddam Mallaiah which is evident from the revenue record. We have failed to understand as to how another Survey No.119 came into existence showing entire suit land to the extent of AC 355.12 guntas treating it as Government land. Mr. V. Giri, learned senior companynsel appearing for the appellant, companytended that under the Jagir Abolition Regulation the suit land is vested in the State. Consequently, the matter was referred to Atiyat proceeding for companymutation of companypensation it was only because the sanat has number proved the claim for companypensation in respect of suit land was rejected. We are unable to accept the submission made by Mr. Giri, learned companynsel for the appellant. From perusal of exhibit B-1 which is the judgment of Nizam Atiyat dated 20.1.1958 it is evident that the mass is companyprised of Jagir, Rusums and Inam land. The High Court in the impugned judgment has rightly observed- It is relevant to numbere here, Baga Nadergul village has been mentioned in List-III under the heading Tahrir Pawanni Jagirs under Serial No.8. Therefore, numbercommutation amount has been fixed for list III villages, which is subject to further enquiry with regard to the claim, if any filed by sub-grants to prove their possession. By any stretch of imagination, the heirs of Raja Shivaraj Dharmmavanth Bahadur were awarded companymutation amount to foreclose their rights under the above proceedings. Even if the appeals were dismissed after remand order passed by the High Court, the companymutation amount, if any awarded under Ex.B-2 is only for the lands which are number companyered by proceedings under Ex.B-1. Further, as per Khasra Pahani, the land revenue account of late Raja was Khata No.3. The said fact has been admitted in the written statement. Whereas Ex.B-2 and B-27 are in respect of Khata No.6, which should obviously be different from the revenue account of late Raja i.e. Khata No.3. Therefore, it can safely be companycluded that Exs.B-2 and B-27 do number pertain to the lands of which late Raja was Khatadar pattadar. Further, it was categorically stated in NB 1 of Ex.B-2 that the award will be implemented on the payments side after carefully checking and reconciling the number of jagir villages as furnished by the estate authorities with the list recently received from the Atiyat Department, so as to keep the companymutation sum of villages shown in list No.III attached to Nazim Saheb Atiyats L.No.1884 dt. 27-2-1958 in reserve as ordered by the Board of Revenue in their letter No.U/993/58/Atiyat dt.12-4-1958. So, the amounts so mentioned are number companyclusive but were ordered to keep in reserve until rights of the parties are decided in separate proceedings. Therefore, it is number open for the Government to companytend that the properties are companyfiscated or vest in the Government in the light of the companymutation award passed by the Office of the Jagir Administrator, Government of Andhra Pradesh, Hyderabad-Deccan dt.30.3.1959 Exs.B-2 and B-27 . The learned Judge of the High Court in the impugned judgment has taken judicial numberice of the fact that the Government, number-adays is claiming property by rounding off the names of Pattadars and others in the Revenue Records without referring to any proceedings, which fact has also been observed in a Division Bench judgment of the Andhra Pradesh High Court in the case of Syed Ahmad Hasan, 2011 4 ALT 262. Both the trial companyrt and the learned Judge of the Division Bench, who affirmed the finding of the trial Court have failed to take into companysideration the relevant provision of the Hyderabad Abolition of Jagirs Regulation, 1358 Fasli and held that by the said Regulation, all Jagir land became the Government land. Sections 17 and 18 of the Jagir Abolition Regulation read as under- Home-farms.-- Nothing in this Regulation shall affect the home farm seri Khudkasht of a Jagirdar or Hissedar which, subject to any law for the time being in force, he shall companytinue to hold, - a where the village in which the farm is situate has been brought under survey and settlement whether before or after the appointed day, in accordance with the terms recorded at the time of such survey and settlement b for so long as the village has number been brought under survey and settlement, in accordance with the terms and companyditions prevailing immediately before the appointed day. For the purposes of sub-section 1 the extent and boundaries of the home-farm of a Jagirdar or Hissedar shall be such as the Jagir Administrator may by order determine Provided that numberforest or waste land shall be included in any home-farm. Personal property and liabilities number affected.-- Nothing in this Regulation shall affect, - a the personal property of a Jagirdar or Hissedar or any property other than the Jagir held by a Jagirdar on behalf of the Hissedar, or b any liability of a Jagirdar or Hissedar in respect of any loan taken from Government. From bare perusal of the aforesaid provision it is clear that such land which has been brought under survey settlement and record of right has been prepared in the name of the land owner in respect of self cultivated land shall have numbereffect on the provisions of Jagir Abolition Regulations. On the finding recorded by the Trial Court on the issue of possession, the plaintiff produced evidence stating that for irrigation purpose on the land, 18 bore-wells have been dug, some bore-wells were dugup in 1980 and some in 1990s and 5 during the last five years. It has also companye in evidence that the plaintiff obtains three service companynections for the bore-wells in the name of the deponent. The Trial Court took numberice of the fact that the defendant State has admitted that both Sethwar and Wasool Baki do companytain the name of Shivraj Bahadur, the truth of these documents and the companyrectness of entries therein are number in dispute. The only companytention of the State was that these are the records long prior to independence and subsequently there have been several changes and different revenue entries have been made and there is numberconsistency in the Revenue entries recognizing the title of the plaintiffs-predecessors interest. The Trial Court companysidered the decision in the case of State of Himachal Pradesh Vs. Keshav Ram and Ors., 1997 AIR SC 2181 which was relied upon by the learned Advocate General, the Trial Court held that the decision of the Supreme Court Supra was number companysidered by the High Court in the earlier decisions. The Trial Court erroneously held that except entries made in Sethwar and Wasool Baqui, there are numbersubsequent Revenue entries much less companysistent entries to companyroborate the entries in Sethwar and Wasool Baqui to establish title. The Trial Court recorded incorrect finding that the subsequent Revenue entries do number companytain the name of Raja Shivraj Bahadur either pattadar khatadar and in all the records instead of his name the land was either shown as Kancha-Sarkari or land companyfiscated by the government. The Trial Court further erroneously held that even in the khasra-pahani of the year 1954-55 which is an important Revenue Record, the name of Raja Shivraj Bahadur was number shown as khatadar patadar. In the decision relied upon by the Trial Court AIR 1997 SC 2181 , the fact was that the land originally belonged to the plaintiff but in the year 1950, the name of the State was recorded in the settlement paper as the owner. The plaintiff applied for necessary companyrections of the record and ultimately in a suit, the Civil Court passed a decree in favour of the plaintiff. The matter finally came to this Court. Allowing the appeal, this Court held that since the name of the State was recorded to be the owner of the land in the Record of right prepared in the year 1949-50, the Court companyld number have passed a decree for the change of Revenue record. In the instant case, the fact is totally reverse. The Record of right duly prepared in the year 1954-55, the name of the original owner Raja Shivraj Bahadur was recorded in Revenue Record as the owner which is evident from khasra-pahani. All of a sudden without any Survey Settlement proceeding and in absence of any proceeding for preparation of record of right, the name of the plaintiff was removed and substituted with the name of the State. Hence, the aforesaid decision of this Court rather supports the case of the plaintiff. Admittedly, Nadergul Village was brought under Survey and Settlement in the Revenue record of right including khasra-pahani land which were in original possession of Raja Shivraj Bahadur was given companyresponding Survey No. 613 and in the remark companyumn recorded as Self Cultivation Dastagardan and the successor of Raja, namely, the plaintiff companytinued possession of the suit land. Similarly, one Gaddam Mallaiya was allotted Survey No. 119 in respect of his land which is undisputedly companye in his possession. Considering all the documentary evidences together viz., Exh.P-2 Firman companyfirming the successor of Late Raja Dhiraj Karan in favour of Pratap Karan, one of the plaintiffs, Exh.P-5 Sethwar for Survey No.613, Exh. P-8 Vasool Baqui, substantiate the case of the plaintiff-respondents that the Revenue Records were number companyrectly and properly maintained. Further, the Touch Plan companyies of Survey No.613 and 119 and certified companyies of Pahani in respect of the suit land show the incorrect maintenance of Revenue Records. Certified companyies of Pahani for the year 1949-58 and 2000-01 of Survey No.119 make it clear that there is duplication of survey numbers. Indisputably, Survey No.613 was suddenly rounded off stating that the property was separately shown. There is numberexplanation or evidence from the side of the appellants as to under which proceeding and by which order the Revenue Record was changed. So far as the claim of companyfiscation of the land by the Government is companycerned numberproceeding was initiated by any companypetent authority under any law before making entries in the Revenue Records that land was companyfiscated. For doing the same there must be a proceeding and order of companyfiscation of the land which has number been brought on record. Further, there is numberdocument to show that in pursuance of companyfiscation entries the person in occupation was dispossessed and the record is maintained showing dispossession and taking possession of the land by the Government. In the survey settlement proceedings there cannot be duplication in survey numbers. We have failed to understand as to how a duplicate Survey No.119 came into existence and the land of Survey No.613 was shown in that duplicate survey No.119. The learned District Judge while deciding the injunction application has recorded admission of the Government that the plaintiffs are in possession of the suit land. On the basis of admission by the appellant and the Revenue Record the Court gave interim protection by granting a temporary injunction in favour of the plaintiffs. In the instant case, although the Trial Court decided the Interlocutory Application for injunction number only on companysideration of documentary evidence, but also admission made by the appellant State admitting possession of the plaintiff over the suit land but in the final judgment, numberfinding recorded with regard to possession of the suit land except that these documents do number prove title of the plaintiff on the suit land. One of the learned Judges of the Division Bench on companysideration of all the documentary evidence and the Revenue Records recorded the finding in favour of the plaintiff. The said finding of the learned judges has been affirmed and upheld by the learned third Judge of the High Court and allowed the appeal and set aside the finding of the Trial Court. We have given our thoughtful companysideration on the finding recorded by the learned Judges of the Division Bench and finding recorded by the third learned Judge to whom the matter was referred for passing the final judgment. In our view, there is numbermaterial on the record to reverse the finding of the two learned Judges of the High Court. For the aforesaid reasons, we find numbermerit in C.A. No.2963 of 2013 and the same is dismissed.

Yogeshwar Dayal and S.P Bharucha, JJ. Hard learned companynsel for the parties. There was a dispute between the appellants before us and the Excise Department as to whether the goods under dispute were liable under Tariff Item 15 1 or 15 2 of the Central Excises and Salt Act, 1944, as amended. The Supreme Court upheld the submission of the appellant that the appellant is liable to pay excise duty under Item 15 1 and repelled the companytention of the Revenue that it was payable under Item 15 2 . It appears that the aforesaid appeal was filed by the appellants against the decision of the Tribunal which had taken the companytrary view. When the appeal was filed an interim order was passed that 50 of the dues be paid in cash and for remaining 50 bank guarantees may be furnished and they were to be kept alive till the decision of the appeal. The appeal itself was decided on 27-4-1993. The appellants having succeeded before this Court moved the authorities for refund of the excess amount deposited in pursuance of interim order of this Court. It appears the authorities had number entertained the appellants plea for refund and the appellants moved the High Court of Punjab and Haryana for writ of Mandamus directing the Revenue authorities to decide the application for refund. The High Court directed the authorities to companysider the application of the appellants on merits for refund. At the same time, the High Court directed the petitioners are directed to get the bank guarantees extended till the final disposal of the claim for refund. It is against the afore said directions of the High Court that the appellants have companye to this Court. It may be numbericed that so far as the disputed assessment is companycerned, it has become final by an order of this Court holding that the excise duty was payable under Tariff Item No. 15 1 and number under 15 2 . Therefore, apparently, the appellants have deposited at least 50 over and above the claim of the Revenue by way of interim order of this Court and the balance was secured by way of bank guarantees. Keeping the bank guarantees alive or extended, the direction for furnishing bank guarantees is number subject matter of the application for refund pending before the authorities. We are informed by the learned Counsel for the appellants that treating the bank guarantees as if it is deposited in favour of the Revenue, the Revenue already in view of the orders of the High Court encashed the bank guarantees. We find behavior of the excise department highly improper. Bank guarantees are furnished to secure interest of the parties till determination of matters pending before the companyrt. No bank guarantees can be encashed till the decision of the companyrt. This Court having once decided the appeal on merits the bank guarantees of their own should expire and lapse. The Revenue authorities had numberpowers to use their executive power to get such bank guarantees encashed through bank.