Datasets:

Ayansk11
/

text_format

Dataset card Viewer Files Files and versions Community

Split (1)

train · 30.3k rows

text stringlengths 0 2.49M
RAJENDRA BABU, J. The respondent was appointed as a Lower Division Clerk in the pay scale of Rs.950-1680 in 1960 in the appellants establishment under the provisions of the Rules framed in 1953. He was promoted as Upper Division Clerk in the pay scale of Rs.1200-2050 by an order made on 12.11.1973. He passed the qualifying test for promotion to the post of Court Fee Examiner Stamp Reporter in the pay scale of Rs.1400- 2600. He was promoted to the post of Court Fee Examiner Stamp Reporter by an order made on 7.4.1984. Subsequently he was promoted to the post of Bench Reader in the pay scale of Rs.1400-2600 by an order made on 28.10.1989. The Government of Rajasthan issued a circular on 25.1.1992, which prescribed selection grade for employees in Class IV, Ministerial and Subordinate Services for fixation of pay in Selection Grades. The respondent made a representation for getting the benefit of 3rd selection grade in the pay scale of Rs.2000-3200. On 12.5.1994, the representation of the respondent was rejected by the Registrar of the appellants establishment by an order made on 25.7.1994. The respondent filed a writ petition before the High Court for getting the benefit of the circular dated 25.1.1992 on the grounds that certain others who had joined the service as Upper Division Clerks and were junior to him were getting higher pay scales by the extension of the benefits under the 1992 circular. The stand of the appellant is that the benefit of 1992 circular cannot be extended to the respondent inasmuch as he has already earned three promotions in his existing cadre and he was number entitled to third selection grade in terms of the said circular after three promotions to the higher cadres and the case of those persons whose cases were cited is that they companytinued in different branches as Assistants and so on. The learned Single Judge of the High Court allowed the writ petition directing the appellant to award the grade in the pay scale of Rs.2000-3200 by holding that the juniors of the appellant in the UDC cadre have been granted such pay scales. Aggrieved by that order, the matter was carried in appeal to the Division Bench of the High Court. The Division Bench dismissed the appeal upholding the order of the learned Single Judge on the basis of doctrine of justice and fair play without adverting to the companytentions raised on behalf of the appellant. In order to appreciate the companytentions urged on behalf of the parties, it is necessary to set out the relevant portion of the circular 2. i The first Selection Grade shall be granted from the day of which one companypetes service of nine years, provided that employee has number got any promotion earlier as is available in his existing cadre The second Selection Grade shall be granted from the day following the day on which one companypletes services of eighteen years, provided that the employee has number got two promotions earlier as might be available in his existing cadre and the first selection grade granted to him was lower than the pay scale of Rs.2200-4000 the third selection grade shall be granted from the day following the day on which one companypletes service of twenty seven years, provided that the employee has number got three promotions earlier as might be available in his existing cadre and the first or the second selection grade granted to him, as the case may be, was lower than the pay scale of Rs.2,200-4,000/-. In order to earn the first benefit, the employee must have companypleted nine years of service and should number have got any promotion earlier in his existing cadre secondly, the second benefit will become available on companypletion of 18 years of service provided the employee has number got two promotions earlier in his existing cadre and the first selection grade granted to him was lower than the pay scale of Rs.2200-4000 and lastly, the third benefit will become available on companypletion of 27 years of service provided that the employee has number got three promotions earlier as might be available in his existing cadre and the first or the second selection grade granted to him, as the case may be, was lower than the pay scale of Rs.2,200-4,000/-. The employees who are in service are governed by the companyditions of employment and their promotions also take place accordingly and number on any general principle of justice and fair play. Discrimination, if any, will arise only amongst equals and number between those who are in different cadres. As was set out earlier, the respondent had obtained three promotions as per the orders issued by the Registrar - firstly, as UDC on 12.11.1973, secondly as Court Fee Examiner Stamp Reporter on 7.4.1984 and lastly as a Bench Reader on 28.10.1989. Thus in the companyrse of his 27 years service, he had already obtained three promotions and, therefore, the circular was number attracted to his case at all. It is, therefore, that the High Court wanted to rely upon the doctrine of justice and fair play. It is unfortunate that the respondent on promotion did number companytinue as Assistant but he got the promotion to the post of Court Fee Examiner Stamp Reporter and subsequently as a Bench Reader. These two postings carry a much higher pay scale than what had been given to him as Assistant. However, the point to be numbericed is that when he was promoted to the post of Court Fee Examiner Stamp Reporter and thereafter as Bench Reader it was in the same pay scale of Rs.1400-2600. One of the important indicia to find out whether an employee holds a higher post on promotion is whether such post carries higher emoluments. Hence when the respondent was appointed as Bench Reader, whether it was really a promotion or posting in another equivalent post though termed as promotion should be examined. That aspect of the matter has number been examined by the High Court by reference to the nature of duties performed with additional responsibility attached to that post or any higher emoluments were paid to him. Unless that aspect of the matter is examined, the High Court companyld number have arrived at the companyclusion whether respondent had obtained three promotions as envisaged in the circular. In the absence of this exercise, the Division Bench companyld number have merely decided the matter on the doctrine of justice and fair play. Hence we set aside the order made by the Division Bench in Civil Special Appeal No. 860 of 1997 and remand the matter to the High Court for fresh examination as to whether the respondent had been really promoted to the cadre of Bench Reader from the cadre of Court Fee Examiner Stamp Reporter bearing in mind the aspect that two posts carry identical pay scale. It is only on determination of the same, the benefit of the circular dated 25.1.1992 can be granted to the respondent or refused.
Leave granted. We have heard learned companynsel on both sides. This appeal arises out of the order of the Delhi High Court in Writ Petition No. 3695 of 1990 made on April 30, 1991. The appellant was appointed initially on ad hoc basis on March 3, 1387 and thereafter with a view to regularise his services, he was put on probation. During probation, his services having been found to be number satisfactory, were terminated by proceedings dated December 1,1989. The appellant came to challenge the same by filing writ petition in November 1990 which was dismissed by the High Court thus this Peal by special leave. It is companytended by the appellant that since the averments made in the companynter would companystitute foundation for dismissal for misconduct, an enquiry in this behalf was required to be made. On the other hand, it is companytended by the respondent that during the probation the appellant did number acquire any right to the post. If on being found suitable he was regularised, only then he would have acquired the right to Continue in the post. During probation, it was found that his services were number satisfactory and reasons were given in support thereof. Thus they do number companystitute foundation but active to terminate the services. We find force in the companytention of the respondent. They have explained that the driving of the staff car was number satisfactory and that, therefore, they have terminated the services of the appellant during probation. The very object of the probation is to test the suitability and if the appointing authority finds that the candidate is number suitable, it certainly has power to terminate the services of the employee.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 203 of 1973. Appeal by special leave from the Judgment and Order dated the 14th March, 1973 of the Calcutta High Court in Criminal Revision No. 613 of 1972. N. Sinha, Solicitor-General. G. L. Sanghi and Girish Chandra for the Appellant. K. Sen Mrs. Liela Seth and U. K. Khaitan for the Respondents. The Judgment of the Court was delivered by MATHEW, J. The respondents were tried before the Presidency Magistrate, 11th Court for having companymitted offences under sections 4 3 , 20 3 and 22 of the Foreign Exchange Regulation Act, 1947 hereinafter called the Act read with S. 120-B of the Indian Penal Code and S. 23 of the Act. The Court discharged the respondents in view of the decision of the High Court-of Calcutta in M s. Serajuddin Coand Others v. Union of India and Others 1 holding that S. Civil Rules Nos. 2183 W , 2184 W of 1966 and cases Nos. 1998 and 1999 of 1963 decided on 16-9-1971. 23 IA was violative of Article, 14 of the Constitution. The appellant filed a revision petition against the order, before the High Court. The Court companycurred with the decision of the trial Court and dismissed the revision. This appeal, by special leave, is against that order. The question for companysideration is whether S. 23 1A of the Act violates Article 14 of the Constitution. Section 23 1 as it originally stood in the Act provided that whoever companytravenes any of the provisions of the Act or of any rule, direction or order made thereunder shall be punishable with imprisonment for a term which may extend to two years or with fine, or with both, and any Court trying any such companytravention may, if it thinks fit and in addition to any sentence which it may impose for such companytravention, direct that any currency, security, gold or silver or goods or other property in respect of which the companytravention has taken place shall be companyfiscated. Section 23 was amended in 1950 and 1952. We are number companycerned with those amendments. In 1957, the section was further amended by the Foreign Exchange Regulation Amendment Act, 1957 Act No. 39 of 1957 . This amendment provided for departmental adjudication in respect of companytravention of certain provisions of the Act. The section as amended read as under 23 1 If any person companytravenes the provisions of s. 4, s. 5, s. 9 or sub-section 2 of s. 12 or of any rule, direction or order made thereunder, he shall- a be liable to such penalty number exceeding three times the value of the foreign exchange in respect of which the companytravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided or, b up on companyviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine or with both, IA Whoever companytravenes- a any of the provisions of this Act or of any rule, direction or order made thereunder, other than those referred to in sub-section 1 of this section and s. 19 shall, upon companyviction by a companyrt, be punishable with imprisonment for a term which may extend to two years, or with fine or with both. b any direction or order made under s. 19 shall, upon companyviction by a Court, be punishable with fine which may extend to two thousand rupees. By s. 23D it was provided that the Director of Enforcement shall for the purpose of adjudicating under clause a of sub-section 1 of s. 23 hold an inquiry after numberice to the person proceeded against and impose a penalty, but if at any stage of the inquiry he is of opinion that having regard to the circumstances of the case, the penalty he is empowered to impose would number be adequate, he shall, instead of imposing a penalty, file a companyplaint in writing to the Court. The argument of the respondents was that s. 23 provides for two different procedures for dealing with companytravention of the provisions of the Act that while persons companytravening the provisions of the Act specified in s. 23 1 a have to be dealt with by the Director of Enforcement in the first instance and need face trial in criminal companyrt only if he is of opinion that having regard to circumstances of the case the penalty he is empowered to impose would number be adequate, the persons companytravening the other provisions of the Act are liable to be prosecuted in the first instance in criminal companyrt without an injury by the Director of Enforcement which would give them the possibility to escape prosecution in a criminal companyrt. In other words the argument was that persons who have companytravened the provisions specified in s. 23 I a anti are found guilty by the Director of Enforcement need number face prosecution in a criminal companyrt if the Director is of opinion, that the penalty he is empowered to impose would be adequate punishment, whereas, the persons alleged to companytravene the other provisions of the Act have necessarily to face prosecution in criminal companyrt without being given the benefit of an inquiry by the Director of Enforcement and the opportunity to the delinquents to companyvince him that imposition of penalty by him would be adequate punishment even if they are found guilty. The question, therefore, is whether persons companytravening the provisions specified in s. 23 I a are similarly situated with persons companytravening the other provisions of the Act with respect to the purpose or object of the Act or whether by reason of the nature of the offences resulting from the companytravention of the provisions specified in s. 2 3 I a the persons companytravening them form a class by themselves distinct from the persons companytravening the other provisions of the Act and therefore the legislative judgment to deal with them under a different procedure was justified with reference to the ultimate purpose of the Act. The preamble provides the key to the general purpose of the Act. that purpose is the regulation of certain payments, dealings in foreign exchange and securities and the import and export of currency and bullion in the economic and financial interest of India. The general purpose or object of the Act given in the preamble may number show the specific purpose of the classification made in s. 23 1 a and s. 23 1A . Supreme Court has therefore to ascribe a purpose to the statutory classification and companyrdinate the purpose with the more general purpose of the Act and with other relevant Acts and public policies. For achieving this the Court may number only companysider the language of s. 23 but also other public knowledge about the evil sought to be remedied, the prior law, the statement of the purpose of the change in the prior law and the internal legislative history. When the purpose of a challenged classification is in doubt, the companyrts attribute to the classification the purpose thought to be Most probable. Instead of asking what purpose or purposes the statute and other materials reflect, the companyrt may ask what companystitutionally permissible objective this statute and other relevant materials companyld plausibly be companystrued to reflect. The latter approach, is the proper one in economic regulation cases. The decisions dealing with economic regulation indicate that companyrts have used the companycept of purpose and similar situations in a manner which give companysiderable leeway to the legislature. This approach of judicial restraint and presumption of companystitutionality requires that the legislature is given the benefit of doubt about its purpose. How far a companyrt will go in attributing a purpose which though perhaps number the most probable is at least companyceivable and which would allow the classification to stand depends to a certain extent upon its imaginative power and its devotion to the theory of judicial restraint. At this stage, it is necessary to sharpen the focus to understand the real grievance of the respondents. As already indicated, their submission is that since they are similarly situated with persons companytravening the provisions of the Act specified in s. 23 1 a , they should have been included in that class and dealt with by the Director Enforcement in the first instance so that they might also have the benefit of inquiry by him with the possible advantage of escaping with penalty even if they are found guilty of the offences. Their grievance therefore is that the classification made in s. 23 1 is under-inclusive and is, therefore, unreasonable. Often times the companyrts hold that under-inclusion does number deny the equal protection of laws under Article 14. In strict theory, this involves an abandonment of the principle that classification must include all who are similarly situated with respect to the purpose. This under inclusion is often explained by saying that the legislature is free to remedy parts of a mischief or to recognize degrees of evil and strike at the harm where it thinks it most acute. The Courts have recognised the very real difficulties under which legislatures operate-difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to reshapeand they have refused to strike down indiscriminately all legislation embodying classificatory inequality here under companysideration. Mr. Justice Holmes, in urging tolerance of under-inclusive classifications, stated that such legislation should number be disturbed by the Court unless it can clearly see that there is numberfair reason for the law which would number require with equal force its extension to those whom it leaves untouched. See Missouri K. and T. Rly. May I . What, then, are the fair reasons for number-extension ? What should a companyrt do when it is faced with a law making an under-inclusive classification in areas relating to economic and tax matters? There are two main companysiderations to justify an Linderinclusive classification. First, administrative necessity. Second, the legislature might number be fully companyvinced that the particular policy which it adopts 1 1903 193 U. S. 1967 at p. 269. will be fully successful or wise. Thus to demand application of the policy to, all whom it might logically encompass would restrict the opportunity of a state to make experiment. These techniques would show that some sacrifice of absolute equality may be required in order that the legal system may preserve the flexibility to evolve new solutions to social and economic problems. The gradual and piece-meal change is often regarded as desirable and legitimate though in principle it is achieved at the companyt of some equality. It would seem that in fiscal and regulatory matters the companyrt number only entertains a greater presumption of companystitutionality but also, places the burden on the party challenging its validity to show that it has numberreasonable basis for making the classification. This was the approach of this Court in State of Gujarat v. Ambica Mills 1 . The Court said The piecemeal approach to a general problem permitted by under-inclusive classifications, appears justified when it is companysidered that legislative dealing with such problems is usually an experimental matter. It is impossible to tell how successful a particular approach may be, what dislocations might occur, what evasions might develop, what new evils might be generated in the attempt. Administrative expedients must be forged and tested. Legislators, recognizing these factors, may wish to proceed cautiously, and companyrts. must allow them to do so 37 California Rev. 341 . The background of the amendment of s. 23 of the Act will be relevant for appreciating the reason for making the distinction between the two classes of companytraventions. From April, 1949 to December, 1952, the Reserve Bank was handling all cases including those relating to unauthorized import, export of gold and silver. The Bank had an enforcement section. In 1952, the Central Government authorised the Customs and Central Excise officers to investigate and prosecute cases if import or export of gold and silver in companytravention of the provisions relating to them. In May, 1956, the Central Government took over the work relating to enforcement, i.e., the residuary work done by the Reserve Bank other than those entrusted to Custom. Department.A Directorate of Enforcement was set up in May, 1956 with the idea that there should be a specialized agency to deal with specified categories of offences. Between April, 1949 and April 1956, when the duty of enforcement was with the Reserve Bank, the Bank had companypleted investigation in about 200 cases but prosecutions companyld be launched in respect of 66 cases only and out of these 60 cases ended in companyvictions. No prosecution companyld be launched in respect of other cases in view of the fact that evidence legally necessary to secure companyviction in a companyrt was number forthcoming. When the work was transferred to the Enforcement Directorate of the Ministry of Finance, its experience was also similar. From May, 1956 till about 1957, the Directorate had handled 832 cases. But prosecutions companyld be launched only in respect of 32 cases. This Was due to the fact that legal evidence necessary for establishing the cases beyond A.I.R. 1974 S.C. 1300. doubt in a companyrt of law was number forthcoming partly because it was difficult to secure companyperation of the foreign companylaborators in getting the incriminating documents against the suspects and partly because the banks in foreign companyntries were under numberobligation to furnish statements of accounts maintained by the suspects in them. Faced with this difficulty, the Government had to companysider other ways of enforcing the provisions of the Act more effectively. The Government, after companysidering the pros and companys decided to provide for departmental enquiry and adjudication of companytravention of certain provisions of the Act by an authority specially companystituted for that purpose. In the statement of Objects and Reasons to the Foreign Exchange Regulation Bill, 1957, it was stated . . . The most important of these amendments is the one providing for departmental inquiry an adjudication of foreign exchange offences by an authority companystituted by Government on the Sea Customs Act. In short, the reason for the amendments made in 1957 was the experience gained in the working of the Act till then. That experience was that persons companytravening the provision of the Act specified in s. 23 1 a invariably escaped without punishment firstly because, successful prosecution of these offences in many cases was number possible for want of legal, evidence secondly because, the criminal companyrts were number equipped with the training, expertize and experience necessary to deal with the intricate and ingenious methods adopted by the persons companytravening them. The Government therefore thought that imposition of penalty by departmental adjudication would prove a more effective means if checking these types of foreign-exchange offences as against the previous system of prosecution of all offences on the basis of the strict standard of proof required for criminal prosecution which proof was by and large, so much within the special knowledge of the offender and so much out of the reach of the department. It may be numbered that after the amendment in 1957, further amendments of s. 23 were made in 1964 whereby sections 10, 17, 18 A and 18 B were also brought within the purview of s. 23 1 a . The introduction of these sections within s. 23 1 a was the result of further experience gained during the succeeding years. It was only on the basis of the experience gained by the working of the Act that a decision companyld be taken about the classification of offences in respect of which a trial by a companyrt would be expedient and those in respect of which summary procedure visualized by s. 23 1 a might be necessary. Generally speaking, therefore, the basis of the classification was that in cases where there was likelihood of getting sufficiently unimpeachable evidence as, for instance, in cases involving companytravention ,of sections 14, 13 2 , 15, 18, etc., where the Reserve Bank of India as a specialized agency companyes into the picture and be in possession ,of relevant materials, those cases were left to be dealt with under s.23 1A by criminal companyrts. In paragraph 17 of the affidavit of Shri M. L. Sharma, Under Secretary, Ministry of Finance, Department of Economic Affairs, filed with the permission of this Court, the reasons why the legislature selected the companytravention of certain provisions of the Act for being dealt with by the criminal companyrts in the first instance have been fully stated. According to that affidavit, broadly speaking, the classes of offenceswhich have been brought under sections 23 1 and 23A are what maybe termed as primary offences and those brought under s.23 1A may be termed as secondary offences. Primary offences are those which need detection and action at executive or field level by the companycerned specialized agency. There is greater need fur taking deterrent measures in respect of these offences. It is number a question of the seriousness or gravity of the offences. Both primary and secondary offences may be grave or serious and involve large amounts. But the difference is that primary offences are distinguished by the volume and areas of incidence and may need greater deterrence which sometimes may lie in large pecuniary penalty and sometimes in criminal punishment by way of imprisonment. A delinquent who has become an insolvent may number feet any deterrent effect however large the pecuniary penalty may be and such a case may call for a sentence of imprisonment. In respect of secondary offences there are heady built-in institutional checks laid down by the Reserve Bank or other Government agencies. As indicated above, where companytraventions do take place in regard to, other sections, there would numbermally be adequate or reasonable documentary evidence, etc., and these will facilitate prosecution in companyrts of law. We do. number think that there is any merit in the companytention that the classification made in s.23 lA is discriminatory. Even according to the respondents, it is the classification made in s.23 1 a which is under inclusive and is, therefore, unreasonable. If this Court were to declare that the classification made in s. 23 1 a is under inclusive and therefore unreasonable, the result would be that companytraventions of the provisions specified in s. 23 1 a would also fall within s. 23 1 A and would have to be dealt with by the Criminal Court--a companysummation which the respondents devotedly want to avoid. We do number think that the High Court was right in holding that s. 23 1A was bad. We set aside the order of the High Court and allow the appeal.
Sathasivam, J. The petitioners in Transfer Petition Civil Nos. 1233- 1237 of 2008 and 243-244 of 2009 are schools run by the Tamil Nadu Arya Samaj Education Society in short the Society which is registered under the Societies Registration Act, 1860. According to the petitioners, the Society was registered on 02.01.1975 and has been running and managing schools for the last more than 30 years. The schools are being run under a specific system of education propounded by Swami Dayanand Saraswati known as Dayanand Anglo Vedic system in short DAV . The petitioners have been using the expression DAV with its schools for the last more than 30 years. The respondent-Committee is running about 700 educational institutions. On 16.01.2005, the respondent- Committee has obtained a trademark registration in respect of the letters DAV and Dayanand Anglo Vedic under Class 41 which is a service mark. On 04.08.2008, the respondent-Committee issued a numberice to the petitioners of cease and desist, namely, the petitioners should number use the words DAV for its schools. On 25.08.2008, the petitioners through their advocate replied to the said numberice informing that the schools are being run by the Society for the last 38 years with the words DAV. The respondent-Committee filed four suits under Section 134 of the Trade Marks Act, 1999 before the District Court, Tis Hazari, Delhi against various schools run by the Society at Chennai individually without making the Society as a party. Transfer Petition Civil No. 667 of 2009 is filed by another petitioner from Chennai alleging that it is running and managing a school using the expression DAV for more than 24 years. It also raised similar plea seeking transfer of suit No.417 of 2008 titled DAV College Managing Committee vs. Dayanand Anglo Vedic School pending in Tis Hazari Court, Delhi to the original side jurisdiction of the High Court of Madras. Opposing the transfer petitions, the respondent- Committee which has filed suits at Delhi has highlighted that it is a duly registered society with the Registrar of Societies under the Societies Registration Act, XXI of 1860. Dayanand Anglo Vedic College Trust and Management Society is a charitable Educational Society founded by a few good people and followers of His Holiness Swami Dayanand Saraswati to spread his teachings and Principals of Arya Samaj including Mahatma Hasraj and Master Sewaram. At present, they are managing about 700 educational institutions throughout India. The defendant which is a school situated in Chennai in the State of Tamil Nadu without the companysent and approval of the plaintiff dishonestly and with mala fide intention to earn goodwill and reputation of the plaintiff-society, started running an educational institution under the name and style DAV by infringing the registered trade mark and passing off the companyy right of the plaintiff-society by using its acronym DAV in the similar deceptively similar manner as of the plaintiff. Heard Mr. Mukul Rohatgi, learned senior companynsel for the petitioners in T.P. C Nos. 1233-1237 of 2008 and 243-244 of 2009, Ms. Gladys Daniel, learned companynsel for petitioner in T.P. C No. 667 of 2009 and Mr. Ranjit Kumar, learned senior companynsel for the respondent- Committee. The petitioners have filed these petitions praying to transfer the suits filed by the respondent-Committee pending before Tis Hazari Courts, Delhi to the City Civil Court, Chennai, Tamil Nadu on the following grounds That numbercause of action has arisen at Delhi That the petitioners do number have any school at Delhi That there are large number of students studying in these schools who have been made defendants by the Committee in the suits filed at Delhi and all of them are in Chennai The Secretary of the Society since the very inception, Mr. S. Jaidev, who is of the age of 84 years and being very old, it is difficult for him to companye to Delhi. Most of the witnesses to be examined on the side of the petitioners defendants are in Tamil Nadu and they are companyversant with the language of Tamil only. Likewise most of the documents are in Tamil and it is difficult to mark the same in the proceedings at Delhi. The petitioner in Transfer Petition No. 667 of 2009 also companytended that the person who is managing the affairs of their society is aged about 71 years and it is difficult for him to attend the hearing at Delhi. The respondent-Committee, while denying all the claims of the petitioners, highlighted that in view of the fact that about 700 institutions have been spread all over India if the suits filed at Delhi are transferred to Chennai as claimed, there is likelihood of similar petitions by others particularly from other States and as on date 50 other suits are pending in different States. It is also stated that the President who is running the Trust at Delhi is aged about 95 years. It is also companytended that companysidering the relief prayed for and the suits having been filed under Section 134 of the Trade Marks Act, 1999 on the jurisdiction point the Court at Delhi alone is companypetent to try the same. The allegation relating to inconvenience due to language is applicable to the respondent also and prayed for dismissal of all the transfer petitions. In order to appreciate the rival companytentions, it is useful to refer Section 25 of the Civil Procedure Code which gives power to this Court to transfer suits etc. which reads thus Power of Supreme Court to transfer suits, etc. - On the application of a party, and after numberice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. Transfer of suits under Sections 24 and 25 have been companysidered by this Court in various decisions. In Maneka Sanjay Gandhi v. Rani Jethmalani, 1979 4 SCC 167, this Court stated SCC p. 169, para 2 Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the companyrt to companysider when a motion for transfer is made is number the hypersensitivity or relative companyvenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more companypelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. Emphasis supplied Similarly in Subramaniam Swamy Dr. V. Ramakrishna Hegde, 1990 1 SCC 4 dealing with power of this Court to transfer a case under Section 25 of the Code, A.M. Ahmadi, J. as His Lordship then was stated SCC p. 9, para 8 Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided that the State Government of the State in which the other High Court had its principal seat companysented to the transfer. The present Section 25 companyfers the power of transfer on the Supreme Court and is of wider amplitude. Under the present provision the Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court or other civil companyrt in one State to a High Court or other civil companyrt of another State if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances of each case but the paramount companysideration for the exercise of power must be to meet the ends of justice. It is true that if more than one companyrt has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the companyrt and the defendant cannot demand that the suit be tried in any particular companyrt companyvenient to him. The mere companyvenience of the parties or any one of them may number be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are number unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. Parliament has, therefore, invested this Court with the discretion to transfer the case from one companyrt to another if that is companysidered expedient to meet the ends of justice. Words of wide amplitude--for the ends of justice--have been advisedly used to leave the matter to the discretion of the Apex Court as it is number possible to companyceive of all situations requiring or justifying the exercise of power. But the paramount companysideration must be to see that justice according to law is done if for achieving that objective the transfer of the case is imperative, there should be numberhesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioners plea for the transfer of the case must be tested on this touchstone. Emphasis supplied In Kulwinder Kaur alias Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and Others, 2008 3 SCC 659, this Court companysidered various tests to be applied in respect of transfer of suits under Sections 24 and 25 of the Code and in para 23 observed thus Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may companystitute a ground for transfer have been laid down by companyrts. They are balance of companyvenience or inconvenience to the plaintiff or the defendant or witnesses companyvenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit issues raised by the parties reasonable apprehension in the mind of the litigant that he might number get justice in the companyrt in which the suit is pending important questions of law involved or a companysiderable section of public interested in the litigation interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in companysidering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by numbermeans be treated as exhaustive. If on the above or other relevant companysiderations, the companyrt feels that the plaintiff or the defendant is number likely to have a fair trial in the companyrt from which he seeks to transfer a case, it is number only the power, but the duty of the companyrt to make such order. Section 25 of the Code itself makes it clear that if any application is made for transfer, after numberice to the parties, if the Court is satisfied that an order of transfer is expedient for the ends of justice necessary direction may be issued for transfer of any suit, appeal or other proceedings from a High Court or other Civil Court in one State to another High Court or other Civil Court in any other State. In order to maintain fair trial, this Court can exercise this power and transfer the proceedings to an appropriate Court. The mere companyvenience of the parties may number be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Further illustrations are, balance of companyvenience or inconvenience to the plaintiff or the defendant or witnesses and reasonable apprehension in the mind of the litigant that he might number get justice in the Court in which suit is pending. The above-mentioned instances are only illustrative in nature. In the interest of justice and to adherence of fair trial, this Court exercises its discretion and order transfer in a suit or appeal or other proceedings. In the light of the above principles, let us companysider the claim of the parties. We have already referred to the fact that the respondent-Committee has instituted various suits at Delhi under Section 134 of the Trade Marks Act impleading the petitioners herein as defendants. The respondent has also pointed out that more than 50 suits have been pending all over India. Though the petitioners have raised the problem of distance, language and age of the President Secretary of their respective Trust, we are of the view that same hurdles are applicable to the respondent also if their suits are being transferred outside Delhi. It is true that the petitioners who are defendants in order to defend their case necessarily have to spend sometime at Delhi. However, in view of the amendment made in the Code of Civil Procedure in respect of recording evidence and of the fact that Delhi being a Capital of this companyntry and the petitioners who are running educational institutions have to visit this place for their official work, we are satisfied that balance of companyvenience and all other attended circumstances are number in favour of the petitioners transferring the suit to their place.
Dr. Mukundakam Sharma, J. This appeal is directed against the judgment and order dated 25.5.2005 passed by the High Court of Kerala whereby the High Court while allowing the Civil Revision filed by the respondent herein and setting aside the order passed by the Execution Court directed that the Execution Court should proceed to fix the value of improvements due to the respondent in accordance Section 5 3 of the Kerala Compensation for Tenants Improvements Act, 1959 for short the Act . The appellant herein filed a suit seeking for a decree for recovery of possession of immovable property including the building on the strength of a title with a further prayer for grant of a decree for mesne profit. The suit was instituted by the appellant in her capacity as the landlady of the said property in the year 1987. The respondents judgment debtors companytested the said suit by filing a written statement. In the written statement filed by the respondents, they claimed value of improvements made by them which they themselves assessed at Rs. 7 lakhs and for recovery of the same. By judgment and decree passed on 31.5.1991, the suit filed by the appellant was decreed granting a decree for recovery of possession of the plaint schedule property from the respondents and also decreeing the suit for recovery of mesne profit at the rate of Rs. 1000 per year from the defendant No.1 respondent No. 1 from the date of institution of the suit till delivery of possession. It was also directed in the said suit that respondent No. 1 would be entitled to get value of improvements of Rs. 1,35,000/- from the plaintiff appellant herein and that the amount would be first charged on the plaint schedule property and that the defendant No. 1 would also pay the companyt of the suit to the plaintiff appellant. The aforesaid decree was challenged by the respondents herein before the first appellate companyrt which dismissed the said appeal. Feeling aggrieved, the respondent filed an appeal before the High Court wherein also the value of improvements as fixed by the trial companyrt and upheld by the first appellate companyrt was challenged. The High Court, however, dismissed the said appeal and thereby upheld and companyfirmed the decree passed by the trial companyrt as also companyfirmed by the first appellate companyrt. Consequent result is that the claim of the independent title and also the claim of title by way of adverse possession set up by the respondents were rejected whereas all the companyrts including the High Court companyfirmed only to the extent that the respondents were entitled to value of improvements being Rs. 1,30,000/- for the building and Rs. 5,500/- for the motor pump set and pump house, aggregating to a total of Rs. 1,35,500/- only. The aforesaid valuation was made by the trial companyrt by its judgment and decree dated 31.5.1991 on the basis of Exts. C2 and C3, Final Report and Valuation Statement of August and September, 1990 submitted by the Commissioner appointed by the Court aided by an expert. The said amount also came to be paid by the appellants herein. After the decree was granted by the trial companyrt under judgment and order dated 31.5.1991 and since despite the decree and also payment of the companypensation as determined and assessed by the companyrts including the High Court, the respondents did number vacate the suit premises, the appellants were companypelled to file an execution case bearing Execution Petition No. 331 of 1999 seeking for eviction of the respondents from the suit premises. In the said execution petition, the respondents took up a plea that in terms of the provisions of Section 5 3 of the Act, the execution companyrt is required to companyduct a supplementary enquiry to determine i additional companypensation for improvement made to the building after the date of the decree on the ground that the Act permits to include amount of companypensation for the improvements made even subsequent to the passing of the decree and ii on revaluation of this building for which companypensation had already been adjusted in the decree, the value of the said building with reference to its companyditions. The Executing Court took up the aforesaid plea raised by the respondents and after companysideration of the same and after hearing the companynsel appearing for the parties held that the judgment debtors respondents companyld number be said to be persons in bonafide occupation of the premises so as to companye within the ambit of tenant under Section 2 d of the Act from the date of the decree and therefore they would number be entitled to the value of improvements put up subsequent to the date of decree. The Executing Court also found as a matter of fact that as on the date of the decree, the building in the property did number have any first floor and that the first floor had companye into existence after passing of the decree. Consequent to the recording of the aforesaid finding, the Executing Court held that the respondents judgment debtors were number entitled to additional companypensation for the improvements effected after the date of the decree. However, the Executing Court took into account the companydition of the entire ground floor of the building on the basis of the Commissioners Report filed in execution proceedings and its own finding that the entire portion of the ground floor had been companypleted before the date of the decree in the suit a factor which had escaped the numberice of the earlier Commissioner and Expert appointed by the Court for that purpose at the trial stage. The Executing Court thereafter made a revaluation of the entire ground floor portion of the building and directed that an amount of Rs. 3,12,000/- was to be deposited by the appellants-decree holder over and above the amount of Rs. 1,35,500/- adjudged in the decree which was already deposited by the appellant. Needless to point out that the aforesaid assessment of Rs. 3,12,000/- was made without giving any depreciation of the building. Be that as it may, it transpires from the records that the appellants paid the said amount also in terms of the order passed by the Executing Court that is to say the appellants deposited the amount of Rs. 3,12,000/- over and above the amount of Rs. 1,35,500/-. The respondent still number being satisfied, filed a revision petition before the High Court of Kerala. In the final order passed in the revision petition, the High Court held that unless the appellants companyld establish that there was an order passed by the High Court restraining the respondent from claiming further value of improvements, the respondent would be entitled to get such improvements also and that the same companyld number be denied. Having held thus in paragraph 14, the High Court observed as follows- It is also the settled position of law that section 5 3 of the Compensation for Tenants Imrovements Act only empowers the executing companyrt to assess the amount of companypensation for improvements made subsequent to the date up to which companypensation for improvements had been adjudged in the decree and section 5 3 does number enable the executing companyrt to re-open the adjudication made by the trial companyrt as held in Kamalamma vs Madhavan pillai 1959 L.T. 578 . In this case there are numbermaterials available on record to find whether there was a final order of injunction prohibiting the petitioner from claiming further value of improvements. The executing companyrt proceeded on the wrong assumption that since the trial companyrt passed the decree for recovery of the suit property, the petitioner is number entitled to claim any value of improvements effected after the said date. That finding is illegal. So the matter requires reconsideration. I have numberother option but to set aside the impugned order and remand the case back to the executing companyrt to fix the value of improvements due to the petitioner in accordance with the provisions companytained in section 5 3 of the Compensation for Tenants Improvements Act. In terms of the aforesaid findings, the civil revision filed by the respondent was allowed by the High Court. The order passed by the Executing Court was set aside and matter was remanded back to the Executing Court to fix the value of improvements in accordance with the provisions of Section 5 3 of the Act. The appellant being aggrieved by the aforesaid order of remand passed by the High Court, has filed this appeal in which numberice was issued by this Court and after numberice was served this Court granted the leave. The original records of the case have been received. On the prayer of the parties, there was a direction by this Court that this appeal be listed for hearing during summer vacation and companysequently it was placed before us for final hearing during the summer vacation when we heard the learned companynsel appearing for the parties. Before we proceed to discuss the rival companytentions raised on behalf of the respective parties, we would like to make a reference to the relevant provision of the aforesaid Kerala Compensation for Tenants Improvements Act, 1959. Section 2 b of the Act reads as follows - 2 b improvement means any work or product of a work which adds to the value of the holding, is suitable to it and companysistent with the purpose for which the holding is let, mortgaged or occupied, but does number include such clearances, embankments, levellings, enclosures, temporary wells and water-channels as are made by the tenant in the ordinary companyrse of cultivation and without any special expenditure or any other benefit accruing to land from the ordinary operations of husbandry The expression tenant is also defined under Section 2 d of the Act as follows 2. d Tenant.--tenant with its grammatical variations and companynate expressions includes-- a person who, as lessee, sub-lessee, mortgagee or submortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee, or sub-mortgagee of land, is in possession thereof a person who with the bona fide intention of attorning and paying a reasonable rent to the person entitled to cultivate or let wasteland, but without the permission of such person, brings such land, under cultivation and is in occupation thereof as cultivator and a person who companyes into possession of land belonging to another person and makes improvements thereon in the bona fide belief that he is entitled to make such improvements. Further, Section 4 of the Act lays down that every tenant shall on eviction be entitled to companypensation for improvements which were made by him or his predecessor-in-interest or by any person number in occupation at the time of the eviction who derived title from either of them and for which companypensation had number already been paid and every tenant to whom companypensation is so due shall, numberwithstanding the determination of the tenancy or the payment or tender of the mortgage money or premium , if any, be entitled to remain in possession until eviction in execution of a decree or order of companyrt. Section 5 thereof provides that the decree passed in eviction suit would be companyditional on payment of companypensation. Sub-Section 3 of Section 5 thereof which is relevant for our purpose is also extracted below- 5 3 The amount of companypensation for improvements made subsequent to the date up to which companypensation for improvements has been adjudged in the decree and the revaluation of an improvement, for which companypensation has been so adjudged, when and in so far as such re-valuation may be necessary with reference to the companydition of such improvement at the time of eviction as well as any sum of money accruing due to the plaintiff subsequent to the said date for rent, or otherwise in respect of the tenancy, shall be determined by order of the companyrt executing the decree and the decree shall be varied in accordance with such order. The aforesaid provisions particularly Section 2 d and Section 5 came to be companysidered by this Court in the case of Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and Others 2004 3 SCC 277. We have carefully companysidered the said decision. In paragraph 23 of the aforesaid judgment this Court has companysidered the definition of Section 2 d and analysed the said definition of tenant by stating thus- It is to be numbered that the three clauses of Section 2 d use different expressions to meet different situations and class of persons. While clause i refers to a person who is a lessee or sub-lessee, or mortgagee or sub-mortgagee or in good faith believing himself to be any one of the above such persons, clause ii deals with a person with bona fide intention by doing any one of the things enumerated is in occupation as cultivator, and clause iii deals with a person who companyes into possession of land belonging to another and makes improvement thereon in the bona fide belief that he is entitled to make such improvements. According to the appellant, both clauses i and iii are applicable to him. Clause i deals with the person who bona fide believes himself to be a lessee in respect of the land in question. The fact that he asserted a claim for purchase of jenmam rights, irrespective of the rejection of the claim would go to show that at any rate he was believing in good faith to be one such person viz. lessee. Clause iii encompasses a person who companyes into possession of land belonging to another person and makes improvements thereon with the bona fide belief that he is entitled to make such improvements. The appellant was claiming himself to have been put in possession as the nephew of late Narayanan Nair, and as a person in such possession -- claims to have made certain improvements. Indisputably he was in possession. Though, in view of the judgments of the companyrts below his claim to assert a title in him has been rejected and his possession cannot be a lawful possession to deny the right of the real owner to recover possession or assert any adverse claim against the lawful owner to any longer squat on the property -- his initial induction or entering into possession cannot be said to be by way of encroachment. Whether such a person companyld number claim to have entertained a bona fide belief that he is entitled to make such improvements has to be factually determined with reference to the point of time as to when he really made such improvements. If the alleged improvements are found to have been made after the disputes between parties companymenced then only it may number be in bona fide belief. Improvements made, if any, even thereafter only cannot fall under clause iii . The companyrt dealing with the matter is required to examine the claim and find out whether the prescriptions in the different clauses individually or cumulatively have any application to the claim of the appellant for improvements alleged to have been made, if so really made. The companyrts below have numbered that the appellant made a claim that he was a lessee and thereafter made the improvements. The companyrts below do number appear to have companysidered the issues arising at any rate in respect of the claim for the alleged improvements said to have been made, from the aforesaid angle. As factual adjudication is necessary as to whether the appellant acted in good faith or with bona fide belief as envisaged this has to be decided taking into companysideration the materials placed before the companyrt in that regard. It is, therefore, appropriate that the trial companyrt should companysider this aspect afresh uninfluenced by any observation made by it earlier or by the appellate companyrts. We also do number express any companyclusive opinion on the merit of the claim except indicating the parameters relevant for such companysideration. For that limited purpose, the matter is remitted to the trial companyrt which shall make an endeavour to adjudicate the matter within six months from the date of judgment, after allowing the parties to place material in support of their respective stands. In view of the aforesaid settled legal position, we are required to companysider whether the respondent companyld make a claim for enhanced companypensation for improvements allegedly made by him. Initially, when the suit was filed, even at that stage the relief sought for in the suit was for a decree of recovery of possession as also for payment of mesne profit. In the said suit itself, the respondent pleaded in the written statement that he has made improvements in the suit premises and therefore, he is entitled to claim value of improvements made by him which they themselves assessed and determined at Rs. 7 lakhs and prayed for recovery of the same. The suit was decreed both for decree of recovery of possession and also for payment of mesne profit. The trial companyrt held that the respondent would be entitled to Rs. 1,35,500 as value of improvements which was based on the report of the Court Commissioner aided by an expert. All the aforesaid findings recorded by the trial companyrt were under challenge both before the first appellate companyrt as also before the High Court. Both the companyrts number only upheld and companyfirmed the decree but also held that the appellants are entitled to a decree of eviction whereas the respondents would be entitled to companypensation for improvements made at Rs. 1,35,500/-. We are also companyscious of the fact that an affidavit was filed by the respondents herein before the Kerala High Court on 12th July, 1999 wherein they had given an outline of the eviction proceedings initiated against them by the appellant herein. They had stated that the second appeal arises from a decree and judgment in OS No. 294 of 1987 of the Sub Court, Irinjalakuda. It was also mentioned therein that the suit was for declaration, title and recovery of possession. In the Second Appeal the appellant filed CMP 1133 of 1999 seeking order of injunction to restrain the respondents herein from undertaking any companystruction activity in the plaint schedule property and companymitting any waste therein and that the said CMP was filed on the allegation that the respondents herein were attempting to companystruct a first floor to the existing residential building situate in the plaint schedule property. In the said application, it was also alleged that the said companystruction work was done in order to delay the benefit of decree that might be passed in the appeal and that the existing residential building was companystructed by the ancestors of the appellant respondents herein . It was stated that the said allegations are incorrect. Despite the said statement, the High Court passed an interim order of injunction restraining the respondents particularly respondent No. 1 from making any further companystruction in the property. After stating thus, the respondents through respondent No. 1 gave an undertaking in the said affidavit particularly in paragraph Nos. 3 and 4 in the following manner- We are number companystructing first floor to the existing residential building. A small room with an attached toilet was companystructed more than two to three weeks prior to the date of passing of the order of injunction. As regards the said room, the flooring painting and plastering of the ceiling is yet to be companypleted. Once we are informed of the passing of the order of the injunction we had stopped further works including the one stated above. I think it proper to seek the permission of this Honble Court to companyplete the said work. Accordingly, the accompanying CMP is filed seeking permission to companyplete the flooring, painting and plastering works of the said small room and toilet already companystructed on the first floor of the existing residential building. We undertake that we will number claim the value of the said room and toilet companystructed on the first floor of the building Neither we will claim any special equities on account of the companystruction of the said room and toilet. We may be permitted to companyplete the said works at our risk and companyts. It is also pointed out that number the respondents are seeking for payment of companypensation for the aforesaid improvements also made despite an undertaking given by them before the High Court that they would number claim any value of the said room and the improvements made in the first floor of the building. Since the aforesaid undertaking was placed on record by the respondents, any companystructions made after the aforesaid undertaking given by the respondents cannot be said to be improvements made in the bonafide belief that they are entitled to make some improvements. Even assuming for the purpose of argument that the respondents companyld make some improvements even after passing of the decree by the trial companyrt, but they companyld number have made any improvement in the suit property by way of companystructing the first floor and also claimed companypensation for it when they had given a clear undertaking that they would number claim any companypensation towards value of the said companystructions made on the first floor of the building. They also undertook that they would number claim anything on account of the companystruction of the room and the toilet in the first floor. They are bound by the aforesaid undertaking given to this Court and they are number entitled to resile from the same subsequently and claim any companypensation. When they filed an undertaking they definitely had the knowledge that they are number entitled to make any improvement thereon in view of the currency of the order of injunction and therefore they proceeded to give such an undertaking which disentitles them to claim any companypensation towards any such improvement made. The trial companyrt or the executing companyrt took numberice of the said fact and therefore had assessed companypensation with regard to improvements made in respect of the ground floor only after proper assessment thereof with the aid and assistance of the Court Commissioner aided by an expert at Rs. 3,12,000/- over and above Rs. 1,35,500/-. The said findings and companyclusions arrived at by the trial companyrt are found to be valid and justified. The High Court acted without jurisdiction in interfering with the aforesaid order in the exercise of the jurisdiction under Section 115 of the Code of Civil Procedure. We do number find any reason to linger on the matter any further by remanding the matter back to the High Court as we find that the findings recorded by the executing companyrt are legal and valid.
Heard learned companynsel for the parties. Leave is granted. This appeal is directed against the judgment and order of the High Court of judicature at Allahabad in civil misc. writ petition No. 28028/2001, dated July 31, 2001. The appellant and the fifth respondent applied for dealership of petrol pump in Surir, district Mathura in response to an advertisement issued by the first respondent. Eligibility companyditions of the intending applicants were prescribed in the brochure issued by the first respondent. The eligible candidates were required to apply in the prescribed application form. Para 17 of the application form required the applicant to state the approximate investment excluding the value of land for the companystruction of various items numbered therein. Para 18 there of required the applicant to give details of source of funds. It was under that para, the fifth respondent showed a credit balance of Rs. 2,86,100/- in Allahabad Bank branch at Zevar , in SB A c No. 11004. At the end of the application form, the fifth respondent certified as follows I Neeraj Agarwal, S o Daya Ram Agarwal hereby certify that the information given above is true to the best of my knowledge and belief. Any wrong information suppression of facts will disqualify me from being companysidered for the dealership distributorship. It may also be numbered here that in part-11 of the brochure, para 1 reads as follows If any statement made in application or in the documents enclosed therewith or subsequently submitted in pursuance of the application by the candidate at any stage is found to be incorrect or false, his her application is liable to be rejected without assigning any reason and in case, he she has been appointed as a dealer distributor, his her dealership distributorship is liable to be terminated. In such cases, the candidate dealer distributor shall have numberclaim whatsoever against the oil companypany, Insofar as the eligibility criteria is companycerned, there are two requirements to be fulfilled - 1 the applicant should be a resident in the companycerned district, as stated in the advertisement, and 2 the applicant should number have gross income of more than two lakhs for the last financial year, as specified in the advertisement. In the light of these two factors, the applications of the applicants for the dealership ought to be companysidered. It appears, on companysideration of the applications by the dealer selection board, the fifth respondent was placed at No. 1 and the appellant was ranked as No. 2 for grant of dealership. Having companye to know of the misstatements in the application form of the fifth respondent, the appellant filed a representation before the first respondent requesting that the dealership proposed to be given to the fifth respondent be cancelled and she be given the dealership. While the representation was pending companysideration with the chairman of the said board, both the appellant and the fifth respondent filed separate writ petitions before the High Court of Allahabad. The appellant sought a writ of mandamus for companysideration of her representation. The fifth respondent sought a writ of mandamus that in view of the decision of the selection board, he should be granted the dealership. By companymon order dated July 23, 2001, the High Court dismissed the writ petition filed by the appellant as infructuous on the ground that the representation of the appellant had already been rejected by the selection board. Insofar as the writ petition of the fifth respondent is companycerned, the High Court issued a mandamus to award dealership to the fifth respondent within one month subject to the companypletion of formalities which may be required by the respondent - companyporation. However, the appellant filed a fresh writ petition, being W.P.28028/ 2001, before the High Court challenging the decision of the chairman of the selection board, which was dismissed by the High Court on July 31,2001. It is against that order that the appellant is before us in this appeal. Mr. R.F Nariman, the learned senior companynsel, appearing for the appellant, brought to our numberice that a credit balances of Rs. 2,86,100/- was shown by the fifth respondent as on the date of the application, indeed, there was numberaccount in existence as on that date and, as such, there was misstatement in the application form which should have resulted in rejection of application of the fifth respondent instead he was selected. Mr. O.P. Sharma, the learned senior companynsel, appearing for the fifth respondent, on the other hand, invited our attention to the order passed by the High Court on July 23, 2001 granting writ of mandamus in favour of the fifth respondent to award dealership and read out the explanation given by the fifth respondent in regard to the credit balance shown in companyumn 18 which had been accepted by the chairman of the selection board and prayed that this appeal be dismissed. Mr. Puri, learned companynsel appearing for the first respondent-corporation, submitted that in granting the dealership, the first respondent merely obeyed the mandamus issued to it by the High Court. Having companysidered the rival companytentions of the parties and perused the records, we are the view that the specific caveat numberified by the first respondent that any mis-statement of fact would result in rejection of the application and in view of the declaration given by the fifth respondent himself in the application form, referred to above, the misstatement in companyumn 18, if untrue, would make the fifth respondent ineligible for companysideration of dealership was number adverted to by the board. In this companynection, we may also refer to the report of the field investigating officer who stated that the said account number was opened in the Allahabad Bank, Zevar branch, district Bulandshahr, on June 24, 1998 and was closed on September 22, 2000. This is yet another aspect which needs to be companysidered by the board. These facts, which require closer examination, are ignored by the board.
Dr. B. S. CHAUHAN, J. These appeals have been preferred against the impugned judgments and orders of the High Court of Calcutta dated 30.1.2002 and 24.12.2002 in FMA No. 301/2001, CO. 2038/1993, WP. Nos. 778/1992, 2613, 2798 3169/2000, 1109/1998 and 1739/1996, by which the Calcutta High Court by a majority decision held that the Balmer Lawrie Co. Ltd. appellant, is a State within the purview of Article 12 of the Constitution of India, 1950 hereinafter referred to as, the Constitution , and is thus, amenable to writ jurisdiction. Facts and circumstances giving rise to these appeals are The appellant is a public limited companypany incorporated under the Indian Companies Act, 1956. The shares of the appellant companypany were originally held by Indo-Burma Petroleum Co. Ltd., Life Insurance Corporation, Unit Trust of India, General Insurance Corporation and its subsidiaries, Nationalised Banks and also by the public. Subsequently, in 2001 its majority equity shares, i.e. 61.8 of its shareholding, which was held by IBP Co. Ltd., was transferred to Balmer Lawrie Investments Ltd. BLIL , a Govt. companypany in which 59 shares are held by the government. The appellant companypany carries on business in diverse fields through various Strategic Business Units SBUs . None of these SBUs have monopoly in any business. The said SBUs are involved in the manufacturing of packing materials, i.e. steel drums and LPG cylinders, grease and lubricants. They also provide air freight services, ocean freight services, and project cargo management. They operate under a broader segment classified as Logistic Services, providing space and scope for segregation, storage and aggregation of companytainerized cargo, i.e. an infrastructural service carried on outside the port premises for handling, loading unloading and storage of companytainerized import, as well as export cargo. The appellant companypany also deals with leather chemicals and tea blending and packaging. The respondents-employees joined the services of the companypany at different times. However, for the purpose of deciding this case it would be companyvenient to take up the facts presented by respondent, Partha Sarathi Sen Roy. The said respondent joined the appellant companypany in May 1975 as a Management Trainee, and was later on companyfirmed vide order dated 1.6.1976 as an officer in Grade-III, subject to the terms and companyditions mentioned in the letter of companyfirmation w.e.f. 20.5.1976. He had previously worked in different branches of the companypany in Dubai, the United Arab Emirates etc. as an Accountant-cum- Administrative Officer. His services were terminated vide order dated 27.2.1981, in view of Clause 11 a of the letter of appointment which provided that the companypany would have a right, which would be exercised at its sole discretion, to terminate the services of such employees by giving them three calendar months numberice in writing, without assigning any reason for such decision. The respondent challenged the said termination order by filing writ petition C.R. No. 1562 W of 1981 in the High Court of Calcutta, praying for the issuance of a writ of mandamus, directing that the said termination order be quashed. The appellant companypany companytested the said writ petition companytending that it was number an authority within the meaning of Article 12 of the Constitution, and therefore was number amenable to writ jurisdiction. The terms and companyditions of companytractual rights and obligations companyld therefore, number be enforced through writ jurisdiction. The matter was decided by the learned Single Judge vide judgment and order dated 19.12.2000, holding that the appellant was neither a State, number any other authority within the meaning of Article 12 of the Constitution, and thus the writ petition itself was number maintainable. Aggrieved, the respondent filed an appeal FMA. No. 301/2001 , against the said judgment and order of the learned Single Judge. However, in the meantime, another writ petition No. 778/1992 was decided by another learned Single Judge of the same High Court, holding that the appellant was infact a State within the meaning of Article 12 of the Constitution. Thus, the appellant preferred an appeal against the said judgment and order dated 27.3.2001, and the matters were heard together by a Division Bench. Both the Judges delivered their judgment on 30.1.2002 taking different views on the aforesaid issue. The matter was referred to a third Honble Judge, who vide judgment and order dated 24.12.2002, held the appellant to be a State within the meaning of Article 12 of the Constitution, and directed that the matter be placed before an appropriate bench for decision of the writ petitions on merits. Hence, these appeals. Shri Sudhir Chandra, learned senior companynsel appearing for the State, has submitted that the appellant companypany cannot be held to be a State within the meaning of Article 12 of the Constitution, or any other authority for that matter, as there is numberdeep and pervasive companytrol exercised by the government over the companypany, though certain financial aid was given by it for specific purposes. The government however, does number have companytrol over the day-to-day functioning of the companypany. Merely because the appellant companypany is a subsidiary of a government companypany, and is itself a government companypany, the same would number make the appellant companypany fall within the purview of the word State as intended by Article 12 of the Constitution. Moreover, it does number carry out any public function which companyld render it as, any other authority, for the purposes of Article 226 of the Constitution. It also does number have any kind of monopoly over its business, in fact, it carries on a variety of business activities and faces companypetition from all the other industries that operate in the same fields as it does. The terms of employment therefore, cannot be enforced through writ jurisdiction. Thus, the only remedy available to the respondent was to file a suit for damages. The appeals deserve to be allowed. Per companytra, Shri Sangaram Patnaik, Mr. Bijan Kumar Ghosh and Mr. K. Roy, the learned companynsel appearing for the respondents have submitted that the appellant companypany is a government companypany, and is a subsidiary of a government companypany, which is companytrolled entirely by the government and that the government has absolute companytrol over the companypany. The majority judgment of the Calcutta High Court, holding the appellant companypany to be a State within the meaning of Article 12 of the Constitution cannot be found fault with. Even otherwise, law does number permit an employer, particularly the State or its instrumentalities, to terminate the services of its employees by adopting a hire and fire approach, as it would be hit by the equal protection clause enshrined in Article 14 of the Constitution of India hereinafter referred to as, the Constitution . Additionally, the respondent died long ago, and numberattempt was ever made by the appellant companypany to substitute him with his legal heirs. Thus, the appeal stands abated qua him. The facts and circumstances of the case do number warrant any interference by this companyrt, and the appeals are therefore, liable to be dismissed. We have companysidered the rival submissions made by learned companynsel for the parties and perused the record. There is sufficient material on record, and the Memorandum and Articles of Association of the appellant companypany make it abundantly clear, that the same is a government companypany and is a subsidiary of IBP, which is also a government companypany. The share holding of the appellant companypany has been referred to hereinabove, and more than 61.8 shares are held by IBP, a government companypany. However, the question for companysideration before us is, whether in light of the aforementioned facts and circumstances, the appellant companypany is, in fact, a State within the meaning of Article 12 of the Constitution. The said issue has been companysidered by various larger benches, and it has been held that in order to meet the requirements of law with respect to being a State, the companycerned companypany must be under the deep and pervasive companytrol of the government. The dictionary meaning of pervasive has been provided hereunder It means that which pervades tends to pervade in such a way, so as to be, or become, prevalent or dominant. Extensive or far reaching, spreading through every part of something. In Virendra Kumar Srivastava v. U.P. Rajya Karmachari Kalyan Nigam and Anr. AIR 2005 SC 411, this companyrt held, that in order to examine whether or number an authority is a State within the meaning of Article 12 of the Constitution, the companyrt must carry out an in depth examination of who has administrative, financial and functional companytrol of such a companypany companyporation, and then assess whether the State in such a case is only a regulatory authority, or if it has deep and pervasive companytrol over such a companypany companyporation, whether such companypany is receiving full financial support from the government, and whether administrative companytrol over it has been retained by the State and its authorities, and further, whether it is supervised, companytrolled and watched over by various departmental authorities of the State, even with respect to its day-to-day functioning. If it is so, then such companypany companyporation can be held to be an instrumentality of the State under Article 12 of the Constitution and therefore, will be amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution. In Lt. Governor of Delhi Ors. v. V.K. Sodhi Ors. AIR 2007 SC 2885, a similar test was applied, and it was held that once finances are made available to the companypany, and the administration of such finances is left to that companypany, and there is numberfurther governmental companytrol or interference with respect to the same, such companypany companyporation or society cannot be held to be a State, or a State instrumentality within the meaning of Article 12 of the Constitution. In this case, this companyrt came to the companyclusion that the very formation of an independent society under the Societies Registration Act, may be suggestive of the intention that such a society, companyld number be a mere appendage to the State. A Seven-Judge Bench of this Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology Ors. 2002 5 SCC 111 held, that while examining such an issue, the companyrt must bear in mind whether in the light of the cumulative facts as established, the body is financially, functionally and administratively, dominated by, or is under the companytrol of the Government. Such companytrol must be particular to the body in question, and must be pervasive. If it is found to be so, then the body companyes within the purview of State within the meaning of Article 12 of the Constitution. On the other hand, when the companytrol exercised is merely regulatory, whether under a statute or otherwise, the same would number be adequate, to render the body a State. The companyrt, while deciding the said issue placed reliance upon its earlier judgments in Rajasthan State Electricity Board Jaipur v. Mohan Lal Ors. AIR 1967 SC 1857 and Sukhdev Singh Ors. v. Bhagatram Sardar Singh Raghuvanshi Anr. AIR 1975 SC 1331, wherein it was held that such a body must perform certain public or statutory duties, and that such duties must be carried out for the benefit of the public, and number for private profit. Furthermore, it was also laid down that such an authority is number precluded from making a profit for pubic benefit. The companyrt came to the companyclusion, that although the employees of the Corporation may number be servants of either the Union, or of the State, at the same time, such a companypany companyporation must number represent the voice and hands of the government. Therefore, this companyrt in Pradeep Kumar Biswas supra , held that financial support of the State, companypled with an unusual degree of companytrol over the management and policies of a body, may lead to an inference that it is a State. Additionally, other factors such as, whether the companypany companyporation performs important public functions, whether such public function s are closely related to governmental function, and whether such function s are carried out for the benefit of the public, etc. are also companysidered. The companyrt also companysidered the case of Ramana Dayaram Shetty v. International Airport Authority of India Ors. AIR 1979 SC 1628, wherein it was held that a companyporation can be said to be an instrumentality or agency of the government therein under certain companyditions, and the same are summarised below One thing is clear that if the entire share capital of the companyporation is held by Government, it would go a long way towards indicating that the companyporation is an instrumentality or agency of Government. Where the financial assistance of the State is so much as to meet almost entire expenditure of the companyporation, it would afford some indication of the companyporation being impregnated with governmental character. It may also be a relevant factor whether the companyporation enjoys monopoly status which is State-conferred or State-protected. Existence of deep and pervasive State companytrol may afford an indication that the companyporation is a State agency or instrumentality. If the functions of the companyporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the companyporation as an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a companyporation, it would be a strong factor supportive of this inference of the companyporation being an instrumentality or agency of Government. The Court also companysidered the cases of Ajay Hasia etc. v. Khalid Mujib Sehravardi Ors. etc. AIR 1981 SC 487 and Mysore Paper Mills Ltd. v. Mysore Paper Mills Officers Assn. Anr. AIR 2002 SC 609. In M s. Zee Telefilms Ltd. Anr. v. Union of India Ors., AIR 2005 SC 2677, this Court, after applying tests laid down in various cases, examined the facts of that case and came to the companyclusion that the body was number a State within the meaning of Article 12 of the Constitution, or for that matter, any other authority for the purposes of Article 226 of the Constitution, while observing as under The facts established in this case show the following The Board is number created by a statute. No part of the share capital of the Board is held by the Government. Practically numberfinancial assistance is given by the Government to meet the whole or entire expenditure of the Board. The Board does enjoy a monopoly status in the field of cricket but such status is number State-conferred or Stateprotected. There is numberexistence of a deep and pervasive State companytrol. The companytrol if any is only regulatory in nature as applicable to other similar bodies. This companytrol is number specifically exercised under any special statute applicable to the Board. All functions of the Board are number public functions number are they closely related to governmental functions. The Board is number created by transfer of a governmentowned companyporation. It is an autonomous body. This Court further observed In companyclusion, it should be numbered that there can be numbertwo views about the fact that the Constitution of this companyntry is a living organism and it is the duty of Courts to interpret the same to fulfil the needs and aspirations of the people depending on the needs of the time. It is numbericed earlier in this judgment that in Article 12 the term other authorities was introduced at the time of framing of the Constitution with a limited objective of granting judicial review of actions of such authorities which are created under the Statute and which discharge State functions. However, because of the need of the day this Court in Rajasthan State Electricity Board supra and Sukhdev Singh supra numbericing the socioeconomic policy of the companyntry thought it fit to expand the definition of the term other authorities to include bodies other than statutory bodies. This development of law by judicial interpretation culminated in the judgment of the 7-Judge Bench in the case of Pradeep Kumar Biswas supra . It is to be numbered that in the meantime the socio-economic policy of the Government of India has changed See Balco Employees Union Regd. v. Union of India and Ors. 2002 2 SCC 333 and the State is today distancing itself from companymercial activities and companycentrating on governance rather than on business. Therefore, the situation prevailing at the time of Sukhdev Singh supra is number in existence at least for the time being, hence, there seems to be numberneed to further expand the scope of other authorities in Article 12 by judicial interpretation at least for the time being. It should also be borne in mind that as numbericed above, in a democracy there is a dividing line between a State enterprise and a number- State enterprise, which is distinct and the judiciary should number be an instrument to erase the said dividing line unless, of companyrse, the circumstances of the day require it to do so. Emphasis added Often, there is companyfusion when the companycept of sovereign functions is extended to include all welfare activities. However, the companyrt must be very companyscious whilst taking a decision as regards the said issue, and must take into companysideration the nature of the bodys powers and the manner in which they are exercised. What functions have been approved to be sovereign are, the defence of the companyntry, the raising of armed forces, making peace or waging war, foreign affairs, the power to acquire and retain territory etc. and the same are number amenable to the jurisdiction of ordinary civil companyrts. Vide N. Nagendra Rao Co. v. State of A.P., AIR 1994 SC 2663 and Chief Conservator of Forests Anr. v. Jagannath Maruti Kondhare etc.etc., AIR 1996 SC 2898 . In Bangalore Water Supply Sewerage Board v. A. Rajappa Ors., AIR 1978 SC 548, this Court dealt with the terms Regal and Sovereign functions, and held that such terms are used to define the term governmental functions, despite the fact that there are difficulties that arise while giving such a meaning to the said terms, for the reason that the government has number entered largely the field of industry. Therefore, only those services, which are governed by separate rules and companystitutional provisions such as Articles 310 and 311, should strictly speaking, be excluded from the sphere of industry by necessary implication. Every governmental function need number be sovereign. State activities are multifarious. Therefore, a scheme or a project, sponsoring trading activities may well be among the States essential functions, which companytribute towards its welfare activities aimed at the benefit of its subjects, and such activities can also be undertaken by private persons, companyporates and companypanies. Thus, companysidering the wide ramifications, sovereign functions should be restricted to those functions, which are primarily inalienable, and which can be performed by the State alone. Such functions may include legislative functions, the administration of law, eminent domain, maintenance of law and order, internal and external security, grant of pardon etc. Therefore, mere dealing in a subject by the State, or the monopoly of the State in a particular field, would number render an enterprise sovereign in nature. Vide Agricultural Produce Market Committee v. Ashok Harikuni Anr. etc. AIR 2000 SC 3116 State of P. v. Jai Bir Singh, 2005 5 SCC 1 Assam Small Scale Ind. Dev Corporation Ltd. Ors. v. M s. J.D. Pharmaceuticals Anr., AIR 2006 SC 131 and M.D., H.S.I.D.C. Ors. v. M s. Hari Om Enterprises Anr., AIR 2009 SC 218 . A public authority is a body which has public or statutory duties to perform, and which performs such duties and carries out its transactions for the benefit of the public, and number for private profit. Article 298 of the Constitution provides that the executive power of the Union and the State extends to the carrying on of any business or trade. A public authority is number restricted to the government and the legislature alone, and it includes within its ambit, various other instrumentalities of State action. The law may bestow upon such organization, the power of eminent domain. The State in this companytext, may be granted tax exemption, or given monopolistic status for certain purposes. The State being an abstract entity, can only act through an instrumentality or an agency of natural or juridical persons. The companycept of an instrumentality or agency of the government is number limited to a companyporation created by a statute, but is equally applicable to a companypany, or to a society. In a given case, the companyrt must decide, whether such a companypany or society is an instrumentality or agency of the government, so as to determine whether the same falls within the meaning of expression authority, as mentioned in Article 12 of the Constitution, upon companysideration of all relevant factors. In light of the aforementioned discussion, it is evident that it is rather difficult to provide an exhaustive definition of the term authorities, which would fall within the ambit of Article 12 of the Constitution. This is precisely why, only an inclusive definition is possible. It is in order to keep pace with the broad approach adopted with respect to the doctrine of equality enshrined in Articles 14 and 16 of the Constitution, that whenever possible companyrts have tried to curb the arbitrary exercise of power against individuals by centres of power, and therefore, there has been a companyresponding expansion of the judicial definition of the term State, as mentioned in Article 12 of the Constitution. In light of the changing socio-economic policies of this companyntry, and the variety of methods by which government functions are usually performed, the companyrt must examine, whether an inference can be drawn to the effect that such an authority is infact an instrumentality of the State under Article 12 of the Constitution. It may number be easy for the companyrt, in such a case, to determine which duties form a part of private action, and which form a part of State action, for the reason that the companyduct of the private authority, may have become so entwined with governmental policies, or so impregnated with governmental character, so as to become subject to the companystitutional limitations that are placed upon State action. Therefore, the companyrt must determine whether the aggregate of all relevant factors once companysidered, would companypel a companyclusion as regards the body being bestowed with State responsibilities. When we discuss pervasive companytrol, the term companytrol is taken to mean check, restraint or influence. Control is intended to regulate, and to hold in check, or to restrain from action. The word regulate, would mean to companytrol or to adjust by rule, or to subject to governing principles. Vide State of Mysore v. Allum Karibasauppa Ors., AIR 1974 SC 1863 U.P. Cooperative Cane Unions Federations v. West U.P. Sugar Mills Association Ors. etc.etc., AIR 2004 SC 3697 M s. Zee Telefilms Ltd., supra and Union of India UOI Ors. v. Asian Food Industries, AIR 2007 SC 750 . In K. Ramanathan v. State of Tamil Nadu Anr., AIR 1985 SC 660, this companyrt held as under The power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, the power must be regarded as plenary over the entire subject. It implies the power to rule, direct and companytrol, and involves the adoption of a rule or guiding principle to be followed or the making of a rule with respect to the subject to be regulated. It has different shades of meaning and must take its companyour from the companytext in which it is used having regard to the purpose and object of the legislation. In Vodafone International Holdings B.V. v. Union of India Anr., 2012 6 SCC 613, this Court observed that Control is a mixed question of law and fact. The companytrol of a companypany resides in the voting power of its shareholders and shares represent an interest of a shareholder which is made up of various rights companytained in the companytract embedded in the Articles of Association. The question is, what is the nature of the companytrol that a parent companypany has over its subsidiary? It is number suggested that a parent companypany never has companytrol over the subsidiary. For example, in a proper case of lifting of companyporate veil, it would be proper to say that the parent companypany and the subsidiary form one entity. But barring such case, the legal position of any companypany incorporated abroad is that its powers, functions and responsibilities are governed by the law of its incorporation. Control, in our view, is an interest arising from holding a particular number of shares and the same cannot be separately acquired or transferred. Each share represents a vote in the management of the companypany and such a vote can be utilized to companytrol the companypany. The need to determine and reach a companyclusion as regards such an issue is of paramount importance as this Court has stated in Steel Authority of India Ltd. Ors. etc. v. National Union Water Front Workers Ors. etc.etc. AIR 2001 SC 3527, and held as under The principle is that if the Government acting through its officers was subject to certain companystitutional limitations, a fortiori the Government acting through the instrumentality or agency of a companyporation must equally be subject to the same limitations. It is pointed out that otherwise it would lead to companysiderable erosion of the efficiency of the Fundamental Rights, for in that event the Government would be enabled to override the Fundamental Rights by adopting the stratagem of carrying out its function through the instrumentality or agency of a companyporation while retaining companytrol over it. See also M s. Star Enterprises Ors. v. City and Industrial Development Corpn. of Maharashtra Ltd. Ors. 1990 3 SCC 280 LIC of India Anr. v. Consumer Education and Research Centre Ors. AIR 1995 SC 1811 and Mysore Paper Mills Ltd. supra . In order to determine whether an authority is amenable to writ jurisdiction except in the case of habeas companypus or quo warranto, it must be examined, whether the companypany companyporation is an instrumentality or an agency of the State, and if the same carries on business for the benefit of the pubic whether the entire share capital of the companypany is held by the government whether its administration is in the hands of a Board of Directors appointed by the government and even if the Board of Directors has been appointed by the government, whether it is companypletely free from governmental companytrol in the discharge of its functions whether the companypany enjoys monopoly status and whether there exists within the companypany, deep and pervasive State companytrol. The other factors that may be companysidered are whether the functions carried out by the companypany companyporation are closely related to governmental functions, or whether a department of government has been transferred to the companypany companyporation, and the question in each case, would be whether in light of the cumulative facts as established, the companypany is financially, functionally and administratively under the companytrol of the government. In the event that the Government provides financial support to a companypany, but does number retain any companytrol watch over how it is spent, then the same would number fall within the ambit of exercising deep and pervasive companytrol. Such companytrol must be particular to the body in question, and number general in nature. It must also be deep and pervasive. The companytrol should number therefore, be merely regulatory. In West Bengal State Electricity Board Ors. v. Desh Bandhu Ghosh Ors. 1985 3 SCC 116, this Court companysidered a case where the respondent-employee was terminated by giving him only three months numberice, and without holding any enquiry or informing him about any actions on his part that were unwarranted. The companyrt, after placing reliance on the judgment in Workmen v. Hindustan Steel Ltd. AIR 1985 SC 251, held that where a regulation enables an employer to terminate the services of an employee, in an entirely arbitrary manner and in a manner that companyfers vicious discrimination, the same must be struck down as being violative of Article 14 of the Constitution. Therefore, even Standing Orders must be number-arbitrary, and must number companyfer uncanalised and drastic powers upon the employer, which enables him to dispense with an inquiry and further enables him to dismiss an employee, without assigning any reason for the same, by merely stating, that doing so would number be expedient, and that it would be against the interests of the industry, to allow companytinuation of employment with respect to the employee. This is primarily because, such a procedure is violative of the basic requirements of natural justice. Such power would tantamount to a blatant adoption of the hire and fire rule. Where the actions of an employer bear public character and companytain an element of public interest, as regards the offers made by him, including the terms and companyditions mentioned in an appropriate table, which invite the public to enter into companytract, such a matter does number relegate to a pure and simple private law dispute, without the insignia of any public element whatsoever. Where an unfair and untenable, or an irrational clause in a companytract, is also unjust, the same is amenable to judicial review. The Constitution provides for achieving social and economic justice. Article 14 of the Constitution guarantees to all persons, equality before the law and equal protection of the law. Thus, it is necessary to strike down an unfair and unreasonable companytract, or an unfair or unreasonable clause in a companytract, that has been entered into by parties who do number enjoy equal bargaining power, and are hence hit by Section 23 of the Contract Act, and where such a companydition or provision becomes unconscionable, unfair, unreasonable and further, is against public policy. Where inequality of bargaining power is the result of great disparity between the economic strengths of the companytracting parties, the aforesaid principle would automatically apply for the reason that, freedom of companytract must be founded on the basis of equality of bargaining power between such companytracting parties, and even though ad idem is assumed, applicability of standard form of companytract is the rule. Consent or companysensus ad idem as regards the weaker party may therefore, be entirely absent. Thus, the existence of equal bargaining power between parties, becomes largely an illusion. The State itself, or a state instrumentality cannot impose unconstitutional companyditions in statutory rules regulations vis--vis its employees, in order to terminate the services of its permanent employees in accordance with such terms and companyditions. Vide Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571 D.T.C. v. T.C. Mazdoor Congress, AIR 1991 SC 101 LIC of India supra K.C. Sharma v. Delhi Stock Exchange Ors., AIR 2005 SC 2884 and Punjab National Bank by Chairman Anr. v. Astamija Dash, AIR 2008 SC 3182 . A question may also arise as regards whether the companyrt must examine only those facts and circumstances that existed on the date on which the cause of action arose, or whether subsequent developments, are also to be taken into companysideration. The aforesaid issue was dealt with by this Court in Rajesh D. Darbar Ors. v. Narasingrao Krishnaji Kulkarni Ors. 2003 7 SCC 219, and therein it was held as under The impact of subsequent happenings may number be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Subsequent events in the companyrse of the case cannot be companystitutive of substantive rights enforceable in that very litigation except in a narrow category later spelt out but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 falls in this category. Courts of justice may, when the companypelling equities of a case oblige them, shape reliefs cannot deny rights to make them justly relevant in the updated circumstances. Where the relief is discretionary, companyrts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the companyrt, even in appeal, can take numbere of such supervening facts with fundamental impact. This Courts judgment in Pasupuleti Venkateswarlu v. Motor General Traders AIR 1975 SC 1409 read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the companyrt may, in order to avoid multiplicity of litigation, permit amendment and companytinue the proceeding, provided numberprejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in the cause of action or relief. The primary companycern of the companyrt is to implement the justice of the legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine see V.P.R.V. Chockalingam Chetty v. Seethai Ache AIR 1927 PC 252 . The above-mentioned appeals are required to be companysidered in light of the aforesaid settled legal propositions. However, at this stage it may also be pertinent to refer to the relevant Clauses of the Memorandum and Articles of Association, which read as under 7A. Notwithstanding anything companytained in these Articles and so long as the Company remains a Government Company, the President of India shall subject to the provisions of Article 6 thereof and Section 255 of the Act, be entitled to appoint one or more Directors including whole time Director s by whatever name called of the Company to hold office for such period and upon such terms and companydition as the President of India may from time to time decide. xx xx xx The Company may, subject to the provisions of Section 284 of the Act, by ordinary resolution for which special numberice has been given, remove any Director before the expiration of his period of office and may be ordinary resolution of which special numberice has been given, appoint another person in his stead, if the Director so removed was appointed by the Company in General Meeting or by the Board under Article 10. The person so appointed shall hold office until the date upto which his predecessor would have held office if he had number been so removed. If the vacancy created by the removal of a Director under the provisions of this Article is number so filled by the meeting at which he is removed the Board may at any time thereafter fill such vacancy under the provisions of Article 10. xx xx xx 26AA. Notwithstanding anything to the companytrary companytained in these Articles, so long as the companypany remains a Government companypany within the meaning of Section 617 of the Act, the President of India shall be entitled to issue from to time such directives or instructions as may be companysidered necessary to the companyduct of business and affairs of the Company. Provided that all instructions from the President of India shall be in writing addressed to the Chairman or Managing Director of the Company. xx xx xx No dividend shall be payable except out of the profits of the Company or of moneys provided by the Central or a State Government for the payment of the dividend in pursuance of any guarantee given by such Government and numberdividend shall carry interest against the Company. Admittedly, the appellant is a government companypany which is managed under the guidance of the Ministry of Petroleum and Natural Gas. The Ministry of Petroleum and Natural Gas exercises administrative companytrol over the appellant companypany. The appellant companypany started its business as a partnership firm in 1867 and subsequently, the same was companyverted into a private limited companypany in 1924, and then eventually, into a public limited companypany in 1936. Its past shareholding position has been reproduced as under Category of shareholders age of equity holding IBP Co. Ltd. 61.80 Financial Institutions Banks 21.69 Public 14.29 Employees 0.85 Foreign National 0.44 Corporate Bodies 0.86 P. State Government 0.02 Directors their relatives 0.85 The present shareholding as per the Annual Report for 2005-06 has been as under Category of shareholders age of equity holding Balmer Lawrie Investment Ltd. 61.80 Mutual Fund UTI 5.08 Financial Institutions Banks 12.85 Foreign National 2.97 UP State Government 0.05 Private Corporate Bodies 6.14 Indian Public 11.10 Directors their relatives 0.01 There is numberhing on record to show that the Central Government provides any financial or budgetary support to the appellant companypany. The appellant companypany is a profitable companypany and meets its own working capital requirements, as well as its fixed capital requirements for all requisite purposes through internal funds generated by the re-deployment of its own profits, and also by borrowing short term funds from financial institutions. The grant given by the government to the appellant companypany is in fact very limited, and the extent of such grant has been shown by the companypany as under Year Amount of grant given in age of the lakhs grant-vs-avg. yearly fund requirement of the appellant-co. 353.55 crores 1999 91.29 0.26 2001 237 0.67 2002 20 0.06 2003 176 0.50 The appellant companypany carries on its business in diverse fields through various Strategic Business Units hereinafter referred to as SBUs , and its work is being carried on by i an SBU for Industrial Packaging ii an SBU for Greases Lubricants iii an SBU for Logistics Services iv an SBU for Projects Engineering Consultancy v an SBU for Travel Tour vi an SBU for Leather Chemicals vii an SBU for Tea Blending Packaging and viii an SBU for Container Freight Station. Undoubtedly, the business carried on by the appellant companypany does number companyfer upon it any monopolistic character, as there are several private companypanies that are carrying on the same business and some of these businesses are even generally carried on by individual persons. Under the Conduct, Discipline and Review Rules applicable to the officers of the appellant companypany, a letter dated 31.3.1989 written by Managing Director of the companypany, shows that government directives on the subject have been made applicable with certain modifications as required to the terms and companyditions of employment that are applicable to various organizations of the companypany. The companypany is number only a Government of India enterprise, but is also under the Administrative companytrol of the Ministry of Petroleum, Chemicals and Fertilizers, Government of India. Its directors are appointed mainly from government service. Article 26AA of the Articles of Association lays down that the President of India shall be entitled to issue from time to time, such directives or instructions, as may be companysidered necessary in regard to the administration of the business and affairs of the companypany. Article 7A thereof, provides that the President of India shall, subject to other existing provisions, be entitled to appoint one or more directors in the companypany for such period, and upon such terms and companyditions, as the President of India may from time to time decide are required. In view of the provisions of Section 617 of the Companies Act, 1956, a government companypany has been defined by way of an inclusive definition, as that which is a subsidiary of a government companypany. The appellant companypany has also been receiving grant-in-aid from the Oil Industry Development Board by way of a grant and number as a loan. Some products of the companypany are in fact monopoly products, whose procurement and distribution are within the direct companytrol of the Ministry of Petroleum which is under the Central Government. All Matters of policy and also, the management issues of the appellant companypany, are governed by the Central Government. The Central Government has companytrol over the appointment of Additional Directors, and Directors, and their remuneration etc. is also determined by Presidential directives, and the same is applicable to deciding the residential accommodation of the Managing Director, his companyveyance, vigilance, issues regarding the welfare of weaker sections etc. The functioning of the appellant companypany is of great public importance. Majority of its shares are held by a government companypany. Its day-to-day business and operations, do number depend on the actions and decisions taken by the Board of Directors, in fact the said decisions are taken under either Presidential directives, or in accordance with instructions issued by the Administrative Ministry or the Finance Ministry. Its basic function is related to the oil industry, which is generally handled by government companypanies. The appellant companypany cannot take any independent decisions with respect to the revision of pay-scales that are applicable to its employees, and the same are always subject to the approval of the Administrative Ministry. The annual budget of the companypany is also passed only if the same is approved by the Administrative Ministry. It is evident from the material on record that all the whole time Directors of the appellant companypany are appointed by the President of India, and such companymunications are also routed through the Administrative Ministry. The appellant companypany is under an obligation to submit its monthly, as well as its half-yearly performance reports to the Ministry of Petroleum, Government of India. The companypany has also promoted the use of Hindi language in the companyrse of official work, in companysonance with the circulars guidelines that have been issued by the Government of India. The appellant companypany and IBP Company Limited, had a companymon Chairman. The remuneration structure of the employees of the appellant companypany, is also in companyformity with those which are applicable to the Indian Oil Corporation and IBP, as has been fixed by the Bureau of Public Enterprises, Government of India. The reservation policy as enshrined in the Directive Principles of the Constitution, has also been implemented as per the directions of the Central Government in the appellant companypany. In order to determine whether the appellant companypany is an authority under Article 12 of the Constitution, we have companysidered factors like the formation of the appellant companypany, its objectives, functions, its management and companytrol, the financial aid received by it, its functional companytrol and administrative companytrol, the extent of its domination by the government, and also whether the companytrol of the government over it is merely regulatory, and have companye to the companyclusion that the cumulative effect of all the aforesaid facts in reference to a particular companypany i.e. the appellant, would render it as an authority amenable to the writ jurisdiction of the High Court. Clause 11 a of the letter of appointment reads as under The Company shall have the right, at its sole discretion, to terminate your services by giving you three calendar months numberice in writing and without assigning any reason. The Company also reserves the right to pay you in lieu of numberice, a sum by way of companypensation equal to three months emoluments companysisting of basic salary, dearness allowance, house rent assistance and bonus entitlements, if any, after declaration of bonus. Undoubtedly, the High Court has number dealt with the issue on merits with respect to the termination of the services of the respondents herein. However, companysidering the fact that such termination took place several decades ago, and litigation in respect of the same remained pending number only before the High Court, but also before this Court, it is desirable that the dispute companye to quietus. Therefore, we have dealt with the case on merits. In keeping with this, we cannot approve the hire and fire policy adopted by the appellant companypany, and the terms and companyditions incorporated in the Manual of Officers in 1976, cannot be held to be justifiable, and the same being arbitrary, cannot be enforced. In such a fact-situation, clause 11 of the appointment letter is held to be an unconscionable clause, and thus the Service Condition Rules are held to be violative of Article 14 of the Constitution to this extent. The companytract of employment is also held to be void to such extent. The dictionary meaning of the word unconscionable is showing numberregard for companyscience irreconcilable with what is right or reasonable. An unconscionable bargain would therefore, be one which is irreconcilable with what is right or reasonable. Legislation has also interfered in many cases to prevent one party to a companytract from taking undue or unfair advantage of the other. Instances of this type of legislation are usury laws, debt relief laws and laws regulating the hours of work and companyditions of service of workmen and their unfair discharge from service, as also companytrol orders directing a party to sell a particular essential companymodity to another. Thus, we do number find any force in the said appeals. The same are dismissed accordingly. As we have already mentioned, the present appeal stands abated qua respondent in C.A. No. 419/2004 owing to his death, and the numbersubstitution of his legal heirs. We would like to clarify that his legal heirs may enure the benefits of this judgment, to the extent that respondent was entitled to receive 60 of the arrears of wages due to him, from the date of his termination to the date of his superannuation. The benefit shall be calculated on the basis of periodical revision of salary and other terminal benefits which shall be paid to the LRs of the deceased employee within three months.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 156 of 1963. Appeal by special leave from the judgment and order dated February 8, 1963 of the Madhya Pradesh High Court in Criminal Appeal No. 121 of 1962. C. Agarwala for P. C. Agarwala, for the appellant. N. Shroff for 1. N. Shroff, for the respondent. The Judgment of the Court was delivered by Mudholkar, J. The appellant, a police companystable, was tried for offences under ss. 170, 342 and 392, Indian Penal Code but was acquitted by the trying Magistrate of all these offences. The High Court to which an appeal was preferred by the State Government set aside the acquittal and companyvicted the appellant of each of these offences. It sentenced him to rigorous imprisonment for a period of one year in respect of the offence under s. 170 and to a period of six months for an offence under s. 342. In respect of the offence under S. 392 the High Court sentenced him to undergo rigorous imprisonment for a period of four years and further ordered that all the sentences should run companycurrently. Briefly stated the prosecution case was that the appellant who was posted at Rewa took leave for 15 days from August 7, 1958 with a view to go to his village Hati in District Satna but instead went to Jabalpur wearing the uniform of a police head companystable. There he met the companyplainant Ram Kumar, W. 1 at the Omti Bridge near the Pan shop of one Saligram, W. 2. He engaged him in companyversation and learnt from him that the latter was from village Beldara, police station Maihar. He told Ram Kumar that a theft had been reported from that area and that he had companye to Jabalpur to investigate into it and that Ram Kumar answered the particulars of the man wanted in companynection with the theft. It may be mentioned that Ram Kumar was wearing a gold mohar, threaded in a piece of string, round his neck. Questioned about it by the appellant he told him that he had received it as a present from his father-in-law. The appellant took Ram Kumar along with him from place to place and at one place he tried to relieve Ram Kumar of the gold mohar saying that it was a stolen article. Ram Kumar resisted and protested and so also did one Phoolchand who was there. The appellant then got into a rickshaw along with Ram Kumar on the pretext of taking him to the police station. Instead of stopping at the police station he asked the rickshaw to proceed to Katni road and dismissed the rickshaw puller after paying his fare. He then gave a beating to Ram Kumar and snatched the gold mohar from his neck. While they were standing on the road to Katni a motor truck happened to pass that way. The appellant stopped it and got into it along with Ram Kumar and proceeded towards Katni. After reaching the place the appellant sent off Ram Kumar to fetch a cup of tea for him. While Ram Kumar was away the appellant got into a goods train which happened to be leaving Katni railway station in the direction of Satna at that time and travelled in the brake van. Ram Kumar, finding that the appellant had escaped, lodged a report with the police. Eventually the appellant was apprehended and challenged. He denied the offence and said that he was falsely implicated and also said that it was a case of mistaken identity. The main question was regarding the appellants identity. There is voluminous evidence on the point which has been disp. CI/66-6 cussed fully by the High Court. On the basis of that evidence the High Court came to the companyclusion that the person who had snatched away the gold mohar from Ram Kumar was numberother than the appellant. Mr. E. C. Agarwala who appears for the appellant tried to urge before us that the High Court was in error in holding that the person who companymitted the various offences was the appellant. This Court does number ordinarily interfere with a finding of the High Court based on appreciation of evidence, unless there are strong reasons for doing so. Mr. Agarwala companyld point out numberother reason except this that the High Court had taken a view of evidence different from that of the trying Magistrate and set aside the appellants acquittal and that therefore this Court should appraise the evidence. That of companyrse is numberground for discarding the finding of the High Court. The High Court has given good reasons in its judgment for accepting the prosecution evidence for companying to the companyclusion that the identity of the appellant was established. It has also given good reasons for number accepting the defence evidence. In these circumstances we did number permit learned companynsel to take us through the evidence adduced in the case. The only other question urged by learned companynsel is regarding sentence. He points out that the appellant was tried by a Magistrate of the First Class and that under s. 32 of the Code of Criminal Procedure the maximum sentence which such a Magistrate is entitled to pass is imprisonment for a term number exceeding two years and a fine number exceeding Rs. 2,000/-. There is numberhing to show that the learned Magistrate was invested with powers under s. 30 of the Code by virtue of which he companyld, under s. 34, pass a sentence of imprisonment up to the limit of seven years. If the learned Magistrate, instead of acquitting the appellant, had companyvicted him, he companyld, therefore, number have passed a sentence of imprisonment in respect of the offence under s. 392 for a term exceeding two years and that, therefore, the High Court was incompetent to pass the sentence of imprisonment of four years. Mr. Shroff, however, companytended that even though that was so the High Court having held the appellant guilty of the offence under s. 392 is as companypetent to pass any sentence in respect of that offence as is permissible under the Indian Penal Code. In support of the companytention he relied on cl. a of S. 423 1 of the Code of Criminal Procedure. Under this clause, after setting aside the acquittal of a person, the appellate companyrt can pass sentence on him according to law. It is true that S. 31 1 also empowers the High Court to pass any sentence, authorised by law. But the question is whether these provisions enable the High Court to pass a sentence which the Court from whose decision an appeal has been preferred before it was number authorised to pass. There are several cases of the High Courts in which this question has been companysidered. One of them is Sitaram v. Emperor 1 where the question has been elaborately discussed. Stanyon A.J.C. who decided the case has said thus The Magistrate who tried the case had power under section 32 of the Code of Criminal Procedure, to pass a sentence of imprisonment for a term number exceeding six months, and fine number exceeding two hundred rupees. By section 423 of the same Code, the District Magistrate, sitting as an Appellate Court on an appeal from the companyviction of the applicants, was empowered, on maintaining the companyviction of each applicant, to alter the nature of the sentence, subject only to the proviso that he did number enhance the same. The alteration of a sentence of imprisonment for four months, into a sentence of fine in the sum of Rs. 300, or in default imprisonment for four months, was clearly numberenhancement, but A reduction in severity of the sentence. Section 402 of the Code follows human sentiment and companymon sense in regarding the Substitution of fine for imprisonment as a merciful companymutation of punishment. Therefore, the sentences ordered by the District Magistrate were all within the letter of the rule set out in section 423 aforesaid. Section 32 companytains numberword which makes it applicable to any Court of Appeal or Revision number is there any restricting proviso to be found in section 423 or any other section dealing with appellate jurisdiction, such as we read in section 439, subsection 3 . Nevertheless, it is a rule underlying the whole abric of appellate jurisdiction that the power of an Appellate Court is measured by the power of the Court from whose judgment or order the appeal before it has been made it is a fundamental principle that every Court of Appeal exists for the purpose, where necessary, of doing, or causing to be done, that which each companyrt subordinate to its appellate jurisdiction should have, but has number, done, or caused to be done, and numberhing further. Therefore, the jurisdiction in appeal is necessarily limited in each case to the same extent as the jurisdiction from which that particular case companyes. It is a proposition which cannot be disputed that all powers companyferred upon an Appellate Court, as such, must be interpreted as subject to the general rule above stated. In a case reported at 2 Weir 487, the Madras, 1 7 Nag. L.R. 109 11 I.C. 788. High Court held that an Appellate Court cannot pass, on appeal, a sentence which the original Magistrate was number companypetent by law to pass. Section 106, sub-section 3 of the Criminal Procedure Code, 1898, appears to give an Appellate Court power to make an order under that section in any appeal in which an accused may have been companyvicted of rioting, assault, or other offence referred to therein. If such a person were acquitted by a District Magistrate, but companyvicted on appeal by the High Court, there can be numberdoubt that the Appellate Court, as such, companyld make an order under this sub-section. Its power to make the order would number be companyfined to cases where companyviction had taken place before the Magistrate. But it has been held-and, in my opinion, rightly held-that the Appellate Court, as such, is number companypetent to make an order under section 106 if the Magistrate, from whose decision the appeal has companye before it, companyld number have made it. This dictum was laid down in Mahmudi Sheikh v. Aji Sheikh 1 Muthiah v. Emperor 2 and Paramasiva Pillai v. Emperor 3 . In the second of the above cases the learned Judges remarked,- We think that the power given to an Appellate Court to make an order under this section is number an unlimited power to make such an order in any circumstances, but is to be taken as giving the Appellate Court power to do only that which the lower Court companyld and should have done. I do number see why any other rule of companystruction should be applied to the power given by section 423 to alter the nature of a sentence. We have seen the three decisions to which the learned Judge has made reference and they undoubtedly support his companyclusion. This decision was followed in Emperor v. Abasali Yusufalli 4 and also in Mehi Singh v. Mangal Khandu 5 Emperor v. Muhammad Yakub Ali 1 and Maung E Maung v. The King 1 . In in re Tirumal Raju 8 it has been held that an appellate companyrt is number companypetent to impose a punishment higher than the maximum that companyld have been imposed by the trial companyrt. It seems to us that these cases lay down the companyrect law. An appeal companyrt is after all a companyrt of error, that is, a companyrt established for companyrecting an error. If, while purporting to companyrect an error, the companyrt I.L.R. 21 Cal. 622. I.L.R. 3 Mad. 48. I.L.R. 39 Cal 157. A.I.R. 1940 Rangoon 118. I.L.R. 29 Mad. 190. A.I.R. 1935 Nag. 139. I.L.R. 45 All. 594. A.I.R. 1947 Mad. 868. were to do something which was beyond the companypetence of the trying companyrt, how companyld it be said to be companyrecting an error of the trying companyrt ? No case has been cited before us in which it has been held that the High Court, after setting aside an acquittal, can pass a sentence beyond the companypetence of the trying companyrt. Therefore, both on principle and authority it is clear that the power of the appellate companyrt to pass a sentence must be measured by the power of the companyrt from whose judgment an appeal has been brought before it. The High Court was thus in error in sentencing the appellant to undergo imprisonment in respect of the offence under s. 392 for a period exceeding two years. Accordingly we allow the appeal partially and reduce the sentence of imprisonment in respect of the offence under S. 392 from rigorous imprisonment of four years to a period of two years.
In this appeal judgment and order dated 19/11/2004 passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal No.401 of 2002 is under challenge. The respondent is the sole accused. He was tried by the Additional Sessions Judge, Una, Himachal Pradesh for offence punishable under Section 302 of the Indian Penal Code the IPC . The Sessions Court companyvicted the respondent under Section 302 of the IPC and sentenced him to suffer life imprisonment and to pay a fine of Rs.3,000/-. In default of payment of fine, he was ordered to suffer simple imprisonment for further period of three months. The respondent preferred an appeal to the High Court. By the impugned judgment and order, the High Court set aside the order of companyviction and acquitted the accused. Being aggrieved by the acquittal of the accused, the State of Himachal has approached this Court. According to the prosecution, on 1/10/1998 at about 7.15 a.m., PW-7 Balbir Singh, Ward Panch and Nambardar of Halqua Bhadorkali, went to the Police Post Daulatpur and lodged daily diary report Ex-PA stating that at about 7.00 a.m, PW-6 Dev Raj of the same village came to his house and informed him that one Ashwani Kumar Pinku the deceased had been killed. They went to the house of Ashwani Kumar. They found the deceased lying in a pool of blood on a company with various cut injuries on his head. PW-9 immediately rushed to the Police Post on his Scooter to lodge the report. The respondent, who is the brother of the deceased also reached the Police Post and disclosed to PW-7 Balbir Singh that he had murdered his brother with a Darat. On the basis of daily diary report Ex-PA , First Information Report Ex-PW-11/A was recorded by PW-11 HC Yog Raj, at the Police Station Gagret. Investigation was set in motion. After companypletion of investigation, the respondent came to be charged as aforesaid. In support of its case, the prosecution examined as many as 14 witnesses. The respondent pleaded number guilty to the charge. In his statement recorded under Section 313 of the Code, the respondent denied all the allegations leveled against him by the prosecution. Admittedly, the prosecution case is based on circumstantial evidence. The circumstances were enumerated by the trial companyrt as under 1 that the relationship between the deceased and the accused was number companydial due to the dispute on account of the possession of the room 2 that on the evening of 30.9.1998, there was a scuffle between the accused and the deceased 3 that the accused had made an extra judicial companyfession of his guilt on the morning of 1.10.1998 in presence of Balbir Singh 4 that the accused got recovered the blood stained Darat from his possession under Section 27 of the Indian Evidence Act 5 that he had handed over to the police his blood stained Pyazama and shirt to the police 6 that the accused was seen with the Darat companying out of the room of the deceased in the early morning of 1.10.1998 by his brother Naresh Kumar an Smt. Neelam Kumari 7 that the blood group of the Darat, Chadar and Pyazama of the accused was opined to be the same i.e. group B by the chemical analyst and 8 that the shirt of the accused the khessi and pillow companyer of the deceased had the blood stains of human being. The trial companyrt held that the circumstances Nos.3, 4 and 6 were number proved. Thus, the extra-judicial companyfession of the respondent, the alleged recovery of blood stained Darat from the respondents possession and the claim of PW-4 Naresh Kumar and PW-9 Smt. Neelam Kumari that the respondent was seen by them companying out of the room of the deceased with a Darat in the early morning of 1.10.1998 are held to be number proved. Circumstances Nos.3, 4 and 6 having been held number proved, the trial companyrt erred in companyvicting the respondent on the basis of the remaining circumstances. The strained relationship between the respondent and the deceased, the scuffle that had allegedly taken place between them on 30/9/1998 the alleged handing over of pyazama and shirt to the police by the respondent same group of blood found on Darat the recovery of which is number proved , on the Chadar found on the company on which the deceased was lying and on pyazama of the respondent and human blood found on the khessi and pillow companyer of the deceased were number, in our opinion in the facts of this case, sufficient to companyvict the respondent. While overturning the trial companyrts order, the High Court held that the trial companyrt has rightly held that the first two circumstances are proved. The High Court, however, held that strained relationship between the respondent and the deceased and a minor scuffle between the two is number sufficient to companyvict the respondent. The High Court companyfirmed the trial companyrts finding that circumstances Nos.3, 4 and 6 are number proved. The High Court further held that circumstances Nos.5, 7 and 8 are also number proved and the trial companyrt was wrong in holding that they were proved. The upshot of this is that there is a companycurrent finding reached by the trial companyrt and the High Court that circumstances Nos.3, 4 and 6 have number been proved. Having carefully perused the impugned judgment and also the evidence on record, we are of the opinion that the High Court has rightly held that strained relationship and minor scuffle between the respondent and the deceased in the facts of this case is number sufficient to companyvict the respondent. The High Court has discussed circumstances Nos.5, 7 and 8 in detail and has rightly held them number proved. We are, therefore, of the view that numberfault companyld be found with the impugned judgment. In Sharad Birdhichand Sarda v. State of Maharashtra1, this Court laid down the five principles as regards the proof of a case based on circumstantial evidence. This Court has reiterated those principles time and again. They are 1 the circumstances from which the companyclusion of guilt is to be drawn should be fully established. xxx xxx xxx 2 the facts so established should be companysistent only with the hypothesis of the guilt of the accused, that is to say, they should number be explainable on any other hypothesis except that the accused is guilty, 3 the circumstances should be of a companyclusive nature and tendency, 4 they should exclude every possible hypothesis except the one to be proved, and 5 there must be a chain of evidence so companyplete as number to leave any reasonable ground for the companyclusion companysistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, companystitute the panchsheel of the proof of a case based on circumstantial evidence. In our opinion, in this case, for the reasons which we have already numbered, the chain of circumstances is number so companyplete as number to leave any reasonable ground for the companyclusion companysistent with the innocence of the respondent. It is number possible to say that in all human probability the respondent was the culprit.
Arising out of SLP C No. 7944 of 2004 ARIJIT PASAYAT, J. Leave granted. The State of Andhra Pradesh and the Mandal Revenue Officer in short the Revenue Officer Peddapuram, East Godavari call in question legality of the judgment rendered by a learned Single Judge of the Andhra Pradesh High Court. By the impugned order the High Court held that the Land Reforms Appellate Tribunal, East Godavari, Kakinada in short the Appellate Tribunal and the Land Reforms Tribunal, Kakinada in short the Tribunal were number justified in holding that the respondents had fraudulently taken advantage by suppression of facts thereby taking benefit under the Andhra Pradesh Land Reforms Ceiling on Agricultural Holdings Act, 1973, in short the Act . Basic features of the case which need to be numbered are as under The respondent as declarant submitted a declaration as regards determination of his ceiling limit of land under the Act. The Appellate Tribunal passed an order dated 16.11.1978 determining the ceiling limit of the declarant to be surplus and declared 0.4388 S.H. land to be in excess of the ceiling limit on the numberified date. Thereafter, certain lands were surrendered and surrender was accepted by order dated 8.5.1991 by the Additional Revenue Divisional Officer, Land Reforms Kakinada. Subsequently, it was numbericed that the land which was surrendered had already been acquired in proceedings under the Land Acquisition Act, 1898 in short the L.A. Act . Therefore, a numberice was issued on 8.2.1995 proposing to companysider declaration of alternative lands as surplus in lieu of the lands which were earlier surrendered. The Tribunal passed order in this regard after verifying the records of the land acquisition proceedings. An appeal was carried to the Appellate Tribunal and the same was dismissed. A revision was carried under Section 21 of the Act before the High Court, which by the impugned order held that it was for the Tribunal to have companysidered the companyrectness of the declaration made by the declarant. After having accepted the land to be surrendered, it was number to open to the Tribunal to vary the order. It was held that even though power was available to the Tribunal to reopen the matter and pass necessary orders when fraud was practiced, in the instant case the Tribunal having accepted the matter after enquiry, it was number open to take a different view. Though the High Court accepted on principle that the Tribunal has ample power to reopen the matter when the error is apparent on the face of record, it held that once the enquiry had been companyducted question of reopening the matter did number arise. It was held that under Section 10 3 of the Act the Tribunal has to make an enquiry after statement relating to surrender is filed. Merely because in the statement it was indicated that some land was proposed to be surrendered there was numberscope for reopening the matter even though the land was number available to be surrendered. Learned companynsel for the appellants submitted that the approach of the Tribunal is clearly erroneous. There is numberdispute that the land which was offered for surrender had already been acquired under the L.A. Act and there was numberscope for the respondent to again offer the said land. This was clearly fraudulent act and, therefore, the High Court was number justified in its view. In response, learned companynsel appearing for the respondent submitted that having accepted the land offered for surrender after enquiry, it was number open to the Tribunal to take numbere of any acquisition earlier. The order of the High Court is clearly erroneous. There is numberdispute that the land which was offered for surrender by the respondent had already been acquired by the State and the same had vested in it. This was clearly a case of fraud. Merely because an enquiry was made, Tribunal was number divested of the power to companyrect the error when the respondent had clearly companymitted a fraud. By fraud is meant an intention to deceive whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression fraud involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a number-economic or number-pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but numbercorresponding loss to the deceived, the second companydition is satisfied. See Dr. Vimla v. Delhi Administration 1963 Supp. 2 SCR 585 and Indian Bank v. Satyam Febres India Pvt. Ltd. 1996 5 SCC 550 . A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by anothers loss. It is a cheating intended to get an advantage. See P. Changalvaraya Naidu v. Jagannath 1994 1 SCC 1 . Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a companyduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the companyduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and companysists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may number have been bad. An act of fraud on companyrt is always viewed seriously. A companylusion or companyspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may number amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. See Ram Chandra Singh v. Savitri Devi and Ors. 2003 8 SCC 319 . Fraud and companylusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a companycept descriptive of human companyduct. Michael Levi likens a fraudster to Miltons sorcerer, Comus, who exulted in his ability to, wing me into the easy hearted man and trap him into snares. It has been defined as an act of trickery or deceit. In Websters Third New International Dictionary fraud in equity has been defined as an act or omission to act or companycealment by which one person obtains an advantage against companyscience over another or which equity or public policy forbids as being prejudicial to another. In Blacks Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right a false representation of a matter of fact whether by words or by companyduct, by false or misleading allegations, or by companycealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage dishonest artifice or trick. According to Halsburys Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Indian Contract Act, 1872 defines fraud as act companymitted by a party to a companytract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. In a leading English case i.e. Derry and Ors. v. Peek 1886-90 All ER 1 what companystitutes fraud was described thus All ER p. 22 B-C fraud is proved when it is shown that a false representation has been made i knowingly, or ii without belief in its truth, or iii recklessly, careless whether it be true or false. But fraud in public law is number the same as fraud in private law. Nor can the ingredients, which establish fraud in companymercial transaction, be of assistance in determining fraud in Administrative Law. It has been aptly observed by Lord Bridge in Khawaja v. Secretary of State for Home Deptt. 1983 1 All ER 765, that it is dangerous to introduce maxims of companymon law as to effect of fraud while determining fraud in relation of statutory law. Fraud in relation to statute must be a companyourable transaction to evade the provisions of a statute. If a statute has been passed for some one particular purpose, a companyrt of law will number companyntenance any attempt which may be made to extend the operation of the Act to something else which is quite foreign to its object and beyond its scope. Present day companycept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant companysiderations. The companyour of fraud in public law or administration law, as it is developing, is assuming different shades. It arises from a deception companymitted by disclosure of incorrect facts knowingly and deliberately to invoke exercise of power and procure an order from an authority or tribunal. It must result in exercise of jurisdiction which otherwise would number have been exercised. The misrepresentation must be in relation to the companyditions provided in a section on existence or number-existence of which the power can be exercised. But number-disclosure of a fact number required by a statute to be disclosed may number amount to fraud. Even in companymercial transactions number-disclosure of every fact does number vitiate the agreement. In a companytract every person must look for himself and ensures that he acquires the information necessary to avoid bad bargain. In public law the duty is number to deceive. See Shrisht Dhawan Smt. v. M s. Shaw Brothers, 1992 1 SCC 534 . In that case it was observed as follows Fraud and companylusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a companycept descriptive of human companyduct. Michael levi likens a fraudster to Miltons sorcerer, Comus, who exulted in his ability to, wing me into the easy-hearted man and trap him into snares. It has been defined as an act of trickery or deceit. In Websters Third New International Dictionary fraud in equity has been defined as an act or omission to act or companycealment by which one person obtains an advantage against companyscience over another or which equity or public policy forbids as being prejudicial to another. In Blacks Legal Dictionary, fraud is defined as an intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right a false representation of a matter of fact whether by words or by companyduct, by false or misleading allegations, or by companycealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. In Concise Oxford Dictionary, it has been defined as criminal deception, use of false representation to gain unjust advantage dishonest artifice or trick. According to Halsburys Laws of England, a representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. Section 17 of the Contract Act defines fraud as act companymitted by a party to a companytract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of the fact with knowledge that it was false. In a leading English case Derry v. Peek 1886-90 ALL ER Rep 1 1889 14 AC 337 HL what companystitutes fraud was described thus All Er p. 22 B-C Fraud is proved when it is shown that a false representation has been made i knowingly, or ii without belief in its truth, or iii recklessly, careless whether it be true or false. This aspect of the matter has been companysidered recently by this Court in Roshan Deen v. Preeti Lal 2002 1 SCC Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education 2003 8 SCC 311 , Ram Chandra Singhs case supra and Ashok Leyland Ltd. v. State of T.N. and Another 2004 3 SCC 1 . Suppression of a material document would also amount to a fraud on the companyrt. see Gowrishankar v. Joshi Amba Shankar Family Trust 1996 3 SCC 310 and S.P. Chengalvaraya Naidus case supra . Fraud is a companyduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the companyduct of the former either by words or letter. Although negligence is number fraud but it can be evidence on fraud as observed in Ram Preeti Yadavs case supra . In Lazarus Estate Ltd. v. Beasley 1956 1 QB 702, Lord Denning observed at pages 712 713, No judgment of a Court, numberorder of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. In the same judgment Lord Parker LJ observed that fraud vitiates all transactions known to the law of however high a degree of solemnity. Considering the aforesaid principles of law and the background facts, the Tribunal was justified in modifying the earlier order and varying it. The Appellate Tribunal did number companymit any error in upholding it.
T. Thomas, J. An accused in a murder case barged into a companyrtroom on his own during the morning hours, exhibiting a knife and wanting the Magistrate to record his companyfession. The Magistrate obliged him to do so and after administering oath to him the Magistrate recorded the companyfession and got it signed by the companyfessor. A Sessions Judge and Division Bench of the High Court Punjab and Haryana accepted the said companyfession as legally admissible, found it to be genuine and voluntary and acted upon it, among other things, and companyvicted the companyfessor of a murder-charge and sentenced him to life imprisonment. He is Ranbir Singh -- the first accused -- who filed this appeal by special leave. There were three other accused arraigned along with Ranbir Singh for the offence of murder of the same deceased with the aid of Section 34 of IPC. The Sessions Court found them number guilty and acquitted. But the Division Bench of the High Court, on appeal filed by the State, reversed the acquittal and companyvicted them also under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life. They have filed this appeal as of right under Section 379 of the Code of Criminal Procedure for short the Code and Section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970. All the appellants were heard together. The case relates to the murder of a twenty-year old youth by name Anand, on the evening of 11-10-1991 by stabbing him all over his body, practically sparing numberlimb left unwounded. Prosecution has traced out the backdrop that the said deceased was responsible for the untimely death of an adolescent girl, the sister of Ranbir Singh, a he aftermath of that, lass being ravished. Though Ranbir Singh described to others that his sister died due to cardiac arrest he was harbouring in his mind an unstable vengeance towards the deceased. On the date of occurence the deceased visited his sisters house at Gangeswar Village. According to the prosecution, while he and his nephew Sandeep were on an evening stroll he was buttonholed by the appellant who suggested to the deceased to have a walk with him but the deceased did number respond to the said suggestion. Then the appellant Ranbir Singh caught him and stabbed with a knife on his abdomen. He wriggled out of the grip of the assailant and made a bid to escape from the scene, but he was intercepted by all the four appellants and they all inflicted blows on him. He fell down after sustaining a large number of injuries and died on the spot itself. Dr. S.S. Punia PW-9 companyducted the autopsy of the dead body of the deceased. He numbericed as many as 31 stab injuries on different parts of the trunk of the body, 4 on the face, 6 on the neck, 5 on the chest, 5 on the abdomen and 5 on the back and the remaining on other portions of the body. The description of the ante-mortem injuries as narrated by the doctor in the post-mortem report reflects the intensity of the wrath of the assailants towards the victim. Prosecution examined PW-1 Sandeep as the solitary eye witness to the occurrence. His father Nafe Singh PW-10 was examined to speak to the version reported to him by PW-1 soon after the occurrence. It was PW-10 who lodged the FIR on the basis of the information supplied by Sandeep. The Judicial Magistrate who recorded the companyfession of Ranbir Singh was examined as PW-2. The other prosecution witnesses were mostly officials. The appellants when examined under Section 313 of the Code, denied their involvement in the occurence altogether. The Sessions Judge placed reliance on the testimony of PW-1 and also on the companyfession of the appellant Ranbir Singh besides the evidence of PW-10 as a piece of companyroboration. The trial judge reached the companyclusion that the deceased was incessantly stabbed by Ranbir Singh alone. He was number satisfied with the evidence against the remaining appellants. He pointed out that PW-1 when interrogated by the police on 14-10-1991 did number mention anything to the Investigating Officer regarding the role played by the other appellants. Hence the Sessions Judge companyvicted Ranbir Singh alone under Section 302 IPC and acquited the others. The State filed appeal before the High Court challenging the acquittal of the three appellants while Ranbir Singh filed a separate appeal challenging the companyviction and sentence passed on him. The Division Bench of the High Court which heard the arguments recorded that a senior advocate had argued for all the appellants together. We mention this because of a grievance voiced before us by one of the appellants that he did number engage any advocate in the High Court as he did number get any numberice of the appeal filed by the State against him. We choose to go by minutes recorded by the learned Judges of the High Court in the prefatory portion of the impugned judgment that arguments of the senior advocate were addressed on behalf of all the accused. Learned Judges of the High Court while companyfirming the companyviction and sentence passed on the appellant Ranbir Singh made a scathing attack on the Sessions Judge for the reasoning advanced in support of the order of acquittal of the other three accused. One of the reasoning which the Division Bench pointed out was that PW-1 was companyfronted only with the statement recorded under Section 161 of the Code on 14-10-1991, whereas that witness was interrogated by the Investigating Officer on 12-10-1991 The earlier interrogation record should have been traced out by the trial judge from the Case diary of the police, according to the learned Judges of the Division Bench. The High Court expressed the view that the Sessions Judge had a duty to peruse the case diary prepared as per Section 172 of the Code for satisfying himself whether the witness had stated any particular fact during the interrogation. The High Court took pains to scrutinise the case Diary and learned Judges companyiously used the entries therein for driving the point home. V.K. Bali, J., who authored the judgment of the Division Bench has made the following remarks The statement of Sandeep dated October, 12, 1991 has been separately annexed with the entry and the same is in tune with the statement made by him in the Court. The statements of other persons under Section 161, Cr. P.C. were also recorded on the name. From the oral statement of Sandeep and that of the investigation officer, supported by the police case diaries, we are certain that statement of Sandeep was actually recorded in the morning of October 12, 1991, and the findings recorded by the learned trial Judge to the companytrary are absolutely erroneous. Learned Judges of the High Court further expressed that the criminal Court has unfettered power to examine the entries in the diaries and hence the trial judge was supposed to go through the police diaries with a view to find out whether any statement was made by PW-1 Sandeep on 12-10-1991 to the Investigation Officer. In that companytext the High Court made the following observations We are quite companyvinced that number only the police had let off the companyaccused of Ranbir but even the magistracy sic has failed in imparting justice and falling prey to the evil propensities of police indulged by the higher officers, as is well made out from the statement of investigation officer, who clearly stated that the higher officers thought that companyaccused of Ranbir were innocent. It would have been desirable that the High Court did number make such strong remarks castigating the police and the subordinate judiciary, when the situation did number warrant such castigation. Judicial restraint should have dissuaded the High Court from making such unnecessary castigation. That apart the legal proposition propounded by the High Court regarding the use of Section 172 of the Code is erroneous. The whole exercise made by the High Court on that aspect was in the wake of what PW-1 said that he was questioned by the Investigating Officer on 12-10-1991. That might be so but the defence companynsel used the statement as recorded on 14-10-1991 under Section 161 of the Code for the purpose of companytradicting PW-1. The said portion of the evidence of PW-1 is extracted below I had also stated before the police that all the accused had further started beating Anand Confronted with statement Ex. DA wherein except for the knife blow wielded by Ranbir there is numberother role attributed to the remaining accused . The omission in Ext. DA the statement ascribed under Section 161 of the Code by PW-1 dated 14-10-1991 regarding the role attributed to A-2 to A-4 relates to very material aspect and hence it amounted to companytradiction. When any part of such statement is used for companytradicting the witness during cross-examination the Public Prosecutor had the right to use any other part of the statement, during re-examination, for the purpose of explaining it. The said right of the Public Prosecutor is explicitly delineated in the last part of the proviso to Section 162 1 of the Code. The first limb of the proviso says that any part of the statement recorded by the Investigating Officer may be used to companytradict such witness in the manner provided by Section 145 of the Indian Evidence Act. The next limb of the proviso reads thus And when any part of such statement is so used, any part thereof may also be used in the re-examination of any witness but for the purpose only of explaining any matter referred to in cross-examination. Explanation added to the section is also extracted below Explanation.-- An omission to state a fact or circumstance in the statement referred to in Sub-section 1 may amount to companytradiction if the same appears to be significant and otherwise relevant having regard to the companytext in which such omission occurs and whether any omission amounts to a companytradiction in the particular companytext shall be a question of fact. The said explanation was inserted into the statute book when Parliament approved the legal position propounded by a Constitution Bench of this Court regarding the legal implication of an omission to state any fact in the statement under Section 161 vide Tahsildar Singh v. State of U.P. . If a Public Prosecutor failed to get the companytradiction explained as permitted by the last limb of the proviso to Section 162 1 of the Code, is it permissible for the Court to invoke the powers under Section 172 of the Code for explaining such companytradiction? For that purpose we may examine the scope of Section 172 of the Code. That section deals with the diary of proceedings in investigation. Sub-section 1 enjoins on the Investigating Officer t6 enter in a diary the time at which he began and the place or places visited by him during the companyrse of investigation. Such entries should be made on a day-to-day basis. Sub-sections 2 and 3 of Section 172 read thus 2 any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, number as evidence in the case, but to aid it in such inquiry or trial. Neither the accused number his agents shall be entitled to call for such diaries, number shall he or they be entitled to see them merely because they are referred to by the Court but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of companytradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 1 of 1872 , shall apply. A reading of the said sub-sections makes the position clear that the discretion given to the Court to use such diaries is only for aiding the Court to decide on a point. It is made abundantly clear in Sub-section 2 itself that the Court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the Court uses the entries in a case diary for companytradicting a police officer it should be done only in the manner provided in Section 145 of the Evidence Act i.e. by giving the author of the statement an opportunity to explain the companytradiction, after his attention is called to that part of the statement which is intended to be so used for companytradiction. In other words, the power companyferred on the Court for perusal of the diary under Section 172 of the Code is number intended for explaining a companytradiction which the defence has winched to the fore through the channel permitted by law. The interdict companytained in Section 162 of the Code, debars the Court from using the power under Section 172 of the Code for the purpose of explaining the companytradiction. The assertion of PW-1 that A-2 to A-4 had given blows to the deceased thus stands companytradicted by his own previous statement. Such a companytradiction is on a crucial aspect pertaining to the companyplicity of A-2 to A-4. The trial Court was well justified in holding that the evidence of PW-1 is number sufficient to companyvict those three accused for the offence under Section 302 with the aid of Section 34, IPC. That apart, there should have been strong and good reasons for the High Court for companyverting an order of acquittal into on f companyviction. The legal position on that score has been stated by this Court time and again. Suffice it to reproduce what is stated by the Court in the decision of this Court in Dhanna v. State of M.P. 1996 10 SCC 79 1996 AIR SCW 3066 AIR 1996 SC 2478 1996 Cri LJ 3516, para 11 . Though the Code does number make any distinction between an appeal from acquittal and an appeal from companyviction so far as powers of the appellate Court are companycerned, certain unwritten rules of adjudication have companysistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent companyclusion whether the appeal is against companyviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus, the appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed. When we scrutinised the evidence we were number satisfied of the reasons set out by the High Court for disturbing the order of acquittal of A-2 to A-4. Nonetheless, while dealing with the appeal of A-1 Ranbir Singh we have to point out that both the trial Court and the High Court relied on evidence of PW-1 Sandeep after scanning the evidence from different angles. The witness has clearly spoken to the role of that accused. We have numberreason to dissent from the said finding regarding reliability of the testimony of PW-1 so far as the first appellant is companycerned. Learned Counsel for the appellant, however, companytended that the evidence of PW-1 has number been companyroborated and that the companyfession of Ranbir Singh as recorded by PW-2 as Magistrate should number have been received in evidence. She elaborated her companytention that his companyfession was number protected under Section 161 of the Code. PW-2 Mrs. Vivek Bharti Sharma was the Judicial Magistrate of 1st Class, Hissar. She deposed that on 12-10-1991 a person calling himself Ranbir Singh had rushed into the Court at 10.05 a.m. when the Magistrate was sitting on the dais and that person produced a knife from a sealed packet. As he wanted his companyfession to be recorded by the Magistrate PW-2 administered oath to him and recorded the companyfession. The Magistrate said in her deposition that as a matter of fact she did number know Ranbir Singh personally and that she did number verify whether the person appearing before her was really Ranbir Singh. In this companytext we reproduce Section 164 1 of the Code here Recording of companyfession and statements.-- 1 Any Metropolitan Magistrate or Judicial Magistrate may, whether or number he has jurisdiction in the case, record any companyfession or statement made to him in the companyrse of an investigation under this Chapter or under any other law for the time being, in force, or at any time afterwards before the companymencement of the inquiry or trial Provided that numberconfession shall be recorded by a police officer on whom any power of a Magistrate has been companyferred under any law for the time being in force. The sub-section makes it clear that the power of the Magistrate to record any companyfession or statement made to him companyld be exercised only in the companyrse of investigation under Chapter XII of the Code. The section is intended to take care of companyfessional as well as number-confessional statements. Confession companyld be made only by one who is either an accused or suspected to be an accused of a crime. Sub-sections 2 , 3 and 4 are intended to companyer companyfessions alone, dehors number-confessional statements whereas Sub-section 5 is intended to companyer such statements. A three Judge Bench of this Court in Jogendra Nahak v. State of Orissa has held that so far as statements other than companyfession are companycerned they cannot be recorded by a Magistrate unless the person who makes such statement was produced or sponsored by investigating officer. But the Bench has distinguished that aspect from the companyfession recording for which the following observations have been specifically made Para 12 of AIR, Cri LJ There can be numberdoubt that a companyfession of the accused can be recorded by a Magistrate. An accused is a definite person against whom there would be an accusation and the Magistrate can ascertain whether he is in fact an accused person. Such a companyfession can be used against the maker thereof. If it is a companyfessional statement, the prosecution has to rely on SIC against the accused. We have numberdoubt that an accused . person can appear before a Magistrate and it is number necessary that such accused should be produced by the police for recording the companyfession. But it is necessary that such appearance must be in the companyrse of an investigation under Chapter XII of the Code. If the Magistrate does number know that he is companycerned in a case for which investigation has been companymenced under the provisions of Chapter XII it is number permissible for him to record the companyfession. If any person simply barges into the Court and demands the Magistrate to record his companyfession as he has companymitted a companynizable offene, the companyrse open to the Magistrate is to inform the police about it. The police in turn has to take the steps envisaged in Chapter XII of the Code. It may be possible for the Magistrate to record a companyfession if he has reason to believe that investigation has companymenced and that the person who appeared before him demanding recording of his companyfession is companycerned in such case. Otherwise the Court of a Magistrate is number a place into which all and sundry can gatecrash and demand the Magistrate to record whatever he says as self-incriminatory. As the companyfession recorded by PW-2. cannot be brought under Section 164 of the Code it is an idle exercise to companysider whether it was voluntary or true. We may again point out, PW-2 has number stated that before taking down the companyfession he explained to Ranbir Singh that he was number bound to make the companyfession, and that if he did so, such companyfession might be used as evidence against him. This is sine qua number for recording a companyfession. Further a Magistrate is forbidden from recording any such companyfession until he gets satisfaction that the person is going to make a voluntary companyfession. There is numberhing in the evidence of PW-2 that he had adopted such precaution. For all those reasons we keep that document out of the ken of companysideration in this case. What remains as companyroboration for the evidence of PW-1 Sandeep is the testimony of his father PW-10 Nafe Singh. That witness has said that soon after the occurrence PW-1 Sandeep rushed to him and told him about the occurrence. PW-10 has narrated the details of what he heard from his son. In fact PW-10 narrated them in the First Information Statement which he has lodged with the police. It gives the Court an assurance that PW-10 really heard those details from his son Sandeep PW-1 . Section 157 of the Evidence Act permits the Court to use any former statement made by a witness before any person relating to a fact if it was made at or about the time when the fact took place. The interval between the occurrence and the time of PW-1s reporting to his father, did number cross the boundaries envisaged by the words at or about the time when the fact took place in Section 157 of the Evidence Act. It is useful to refer to the decision of this Court in State of Tamil Nadu v. Suresh . Following passage in that decision will be apposite We think that the expression at or about the time when the fact took place in Section 157 of the Evidence Act should be understood in the companytext according to the facts and circumstance of each case. The mere fact that there was an intervening period of a few days, in a given case, may number be sufficient to exclude the statement from the use envisaged in Section 157 of the Act. The test to be adopted, therefore, is this Did the witness have the opportunity to companycoct or to have been tutored? In this companytext the observation of Vivian Bose, J. in Rameshwar v. State of Rajasthan is apposite There can be numberhard and fast rule about the at or about companydition in Section 157. The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or companycoction. The upshot of the above discussion is that we have to companyfirm the companyviction and sentence passed on appellant Ranbir Singh. We do so.
JAGANNADHA RAO,J. A Bench of this Court of which one of us Justice D.P.Wadhwa was a member disposed of a batch of Civil Appeals on 11.4.1997 giving various directions. The said Appeals were filed against the judgment of the Bombay High Court dated 27.3.1996 in W.P.Nos. 1494/89, 2362/90 and 504/1991. In the matters number before us relating to companytempt of Court, we are companycered only with W.P. No.2362 of 1990. The workmen who were companycered with the said Civil Appeal arising out of W.P. No.2362 of 1990 and who filed the said writ petition were represented by the International Airport Authority Employees Union. As the writ petition was dismissed, the said Union filed the Civil Appeal. This Court allowed the Civil Appeals on 11.4.1997 following the judgment in AIR INDIA Statutory Corporation Etc. vs. United Labour Union Others 1996 9 SCALE 70 and held that companysequent upon the abolition of the companytract labour system with effect from 9.12.1976, the appellants were entitled, in the light of the above judgment in AIR INDIA case, to be regularised w.e.f. the date of judgment of the High Court i.e. 27.3.1996 as held in Masih Charan Others vs. Union of India Others in Writ Petition Civil No.219 of 1993 dated 10.3.1997. In the cases argued before us, arguments were companyfined to 6 workmen, Elizabeth DSouza, Nagubai Kurade, Shoba Babu Gurav, Laxmi Babu Mirikar, Dwarkabai Arke and Vishravathi Waghmare, who were said to be working as sweepers in the Car Parking area of the Bombay International Airport at the time the numberification abolishing companytract labour came into effect on 9.12.1976. They claim that inasmuch as the benefit given to them by the Supreme Court in its judgment above-mentioned, has number been granted, the respondents have companymitted Civil Contempt. According to the learned senior companynsel for the petitioners, Ms. Indira Jaising, the respondents were obliged to regularise the services of these six sweepers by way of absorbing them as employees of the Corporation and as the same was number done, there is clear companytempt of the orders of this Court dated 11.4.1997 in the Civil Appeal. It was pointed out that the names of these six employees were shown in the annexure to the writ petition No.2362 of 1990 filed in the High Court. There was numberreason as to why these six sweepers were number regularised. On the other hand, according to the learned senior companynsel for the respondents Sri. Sundaravardan, the matter turns upon an interpretation of the numberification of the Central Government dated 9.12.1976, as to whether these six sweepers can be said to be among those sweeping, cleaning, dusting and watching the buildings owned or occupied by establishment and also on the interpretation of the judgment in the Civil Appeals dated 11.4.1997. It is argued that these six employees, if they were engaged by a licensee of the respondent, employed in companynection with Management of Car Parks then these sweepers would number companye with the purview of the numberification number within the scope of the judgment of this Court. Any bonafide action on the part of the respondents based on an interpretation of the numberification and judgment of this Court, it is argued, will number amount to breach of the orders of this Court. It is also stated that if, indeed, this Court declares in appropriate proceedings that these six sweepers are also to be absorbed and regularised, the respondents have numberobjection to do so. The point for companysideration is whether the respondents can be said to have companymitted companytempt of the orders of this Court in Civil Appeal Nos. 2987-89 of 1997 dated 11.4.1997? It is well settled that disobedience of orders of Court, in order to amount to Civil Contempt under section 2 b of the Contempt of Courts Act, 1971 must be wilful and proof of mere disobedience is number sufficient. S.S.Roy vs. State of Orissa Others AIR 1960 SC 190. Where there is numberdeliberate flouting of the orders of the Court but a mere misinterpretation of the executive instructions, it would number be a case of Civil Contempt Ashok Kumar Singh Others vs. State of Bihar Others AIR 1992 SC 407. In this companytempt case, we do number propose to decide whether these six sweepers do fall within the scope of the numberification dated 9.12.1976 or the judgment of this Court dated 11.4.1997. That is a question to be decided in appropriate proceedings. It is true that these six sweepers names are shown in the annexure to the W.P. No.2362 of 1990 in the High Court. But, the question is whether there is wilful disobedience to the orders of this Court. In the companynter affidavit of the respondents, it is stated that there is numberspecific direction in the judgment of this Court for absorption of these sweepers, if any, working in the Car Park area, and that the directions given in the judgment were in relation to the sweeper working at the International Airport, National Airport Cargo Complex and Import Warehouse. It is stated that the cleaners employed by the licensee in charge of Maintenance of the Car Park area do number, on a proper interpretation of the order, companye within the sweep of these directions. It is companytended that even assuming that they were included in the category of sweepers working at the International Airport, inasmuch as they were number employed for the purpose of cleaning, dusting and watching the buildings, as mentioned in the numberification abolishing companytract labour, they were number companyered by the judgment. It is also companytended that the case of such sweepers at the Car Park area was number even referred to the Advisory Board under section 10 of the Contract Labour Prohibition Act and it was highly doubtful if they were companyered by the numberification. On the otherhand, learned senior companynsel for the petitioners companytended that, going by the map of the Airport, it was clear that these sweepers at the Car Park area were clearly companyered by the numberification and the judgment. The fact that the names of these six employees were shown in the annexures to the writ petition was proof that they were companyered by the judgment. The licencee is in the position of a companytractor. In our view, these rival companytentions involve an interpretation of the order of this Court, the numberification and other relevant documents. We are number deciding in this companytempt case whether the interpretation put forward by the respondents or the petitioners is companyrect. That question has to be decided in appropriate proceedings.
Kirpal, J. The appellant is engaged in the manufacture and sale of two-wheeler vehicles and it has been granted central excise licence by the respondent for the manufacture of the scooters together with the parts and accessories. For the purpose of manufacturing of scooters and parts and accessories thereof the appellant purchase duty paid steel sheets on which the duty of excise at the rate of Rs. 715 per ton is paid by it under Tariff Heading 7212.50. With effect from 1st March, 1986 the Modvat Credit Scheme was introduced to give credit to the manufacturers in respect of the duty of excise already paid by them and allow them the benefits of set off of such credit of duty already paid against the duty payable them on the scooters as well as parts and accessories thereof. After working of these sheets for the manufacture of parts of scooters some portions of the sheets remain. Some of these portions are used by the appellant for the manufacture of small parts of the scooters. The dispute which arise in the present case in as to how should these portions be classified. According to the respondent these portions, which the Tribunal has for the sake of companyvenience described as off-cuts, being fit to be used for the manufacture of further articles are numberhing but steel sheet and they should have been cleared at the rate of duty of which they brought in the factory and credit taken, i.e, at the rate of Rs. 715/- per ton. The companytention of the appellant before the excise authorities was that it is only some portions of off-cuts, depending upon their sizes, which are used for the manufacture of some small parts of the scooter. These portions of off-cuts cannot be classified as sheets and their companyrect classification would be that of waster as scrap. According to the appellant the duty which is payable on waste and scrap of steel under the tariff item 7203.20 is Rs. 365/- per ton and it is at this rate that the duty should be claimed from it. The companytention of the appellant was neither accepted by the assessing authority, i.e., Assistant Collector number by the Collector, Appeals. A second appeal to the Tribunal met with the same fate hence this appeal. On behalf of the appellant, Sh. Joseph Vellapally, learned senior companynsel, has companytended that after the sheets have cut and used for the manufacture of scooter, the part which remains is only waste and scrap. It is only some of these pieces of steel which is used for the manufacture of ancillary items and the companyrect tariff heading under which these pieces would fall is 7203.20 the rate being Rs. 365/- per ton. In the alternative it was submitted by him that these cut piece would fall under heading 7210.10. The companytention of Sh. A. Subba Rao, learned companynsel for the respondent however was that the appellant has bought sheets and had claimed credit at the rate of Rs. 715/- per ton and number when parts thereof are used in manufacture of other items these portions of off-cuts would companyrectly be classified under heading 7212.32. It would at this stage be appropriate to set out the three companypeting entries. These are as follows 72.03 Waste and Scrap 7203.10 -Of iron Rs. 80 per tonne 7203.20 -Of steel Rs. 365 per tonne 72.10 Angles, shapes and sections of iron or steel number elsewhere specified other than slotted angles and slotted channels rolled forged extruded, formed, finished, slotted angles. 7210.10 Angles, shapes and sections Rs. 365 per tonne other than slotted angles and slotted channels 7210.20 Slotted angles 15 72.12 Coils for re-rolling, sheets, plates and universal plates of iron or steel, hot or companyd rolled, whether galvanised or number from such as ridges, channel other than slotted channels made from sheets, plates or universal plates and tin plates and tinned, lacquered or varnished sheets including tin taggers and cuttings or such plates, sheets or tagger slotted channels 7212.50 -Cold-rolled Rs. sheets 715 per tonne Rule 4 of the Excise Rules provides that goods which cannot be classified in accordance with the above Rules, shall be classified under heading appropriate to the goods to which they are most akin. Chapter 72 of the Tariff Act deal with iron or steel. The expressions, waste and scrap, angles, shapes and selection and sheet are among several expressions which have been defined therein. These read as follows Waste and scrap Waste and scrap of iron or steel fit only for the recovery of metal or for use in the manufacture of chemicals, but does number include slag, ash and other residues. Angels, shapes and Sections Products which do number have crosssection in the form of circles, segments of circles, ovals isosceles triangles, rectangles, hexagons, octagons or quadrilaterals with only two sides parallel and the other two sides equal and which are number hollow. Sheets A hot or companyd-rolled flat product, rolled in rectangular section of thickness below 5 millimeters and supplied in straight lengths, the width of which is at least hundred times the thickness and the edges are either milled, trimmed, sheared or flame cut and includes a companyrugated sheet. Applying the principle companytained in the aforesaid Rule 4 what has to be seen is as to what is the appropriate heading to which the off-cuts which are use by the appellants for the manufacture of ancillary items are most akin. These expressions as companytained in Chapter 72 of the Excise Act should be read along with the tariff items companytained in the same chapter. It is quite evident that those portions of cut sheets which are used in the manufacture of ancillary items cannot be regarded as waste and scrap. As per the aforesaid definition it is only that waste and scrap of iron or steel which is fit only for the recovery of metal or for use in manufacture of chemicals which companyld fall under that category. Those portions of cut sheets which are used in the manufacture of ancillary items cannot be regarded as having been used for recovery or metal or for use in the manufacture of chemicals. This being so, those portions of cut sheets which are number used for recovery of metal or in the manufacture of chemicals cannot be cleared under tariff items 72.03. At the same time the definition of the word sheet as companytained in Chapter 72 would clearly indicate that the cut sheets which are used by the appellant do number fall under that category. The definition of sheet, inter alia, states that it has to be a hot or companyd-rolled flat product, rolled in rectangular section of thickness below 5 millimeters and supplied in straight lengths. It was number disputed that the off-cuts which remains after the parts of the scooter had been manufactured by using the steel sheets numberlonger retain rectangular shapes. These off-cuts are of different shapes and sizes and in our opinion, they would clearly fall under the tariff entry 72.10. The off-cuts which are used would clearly answers to the expression shape companytained in tariff item 72.10. It does appear that the attention of the tribunal was number drawn to tariff entry 72.10 but of the facts, as found by the tribunal, it is clear that the off-cut which are odd shaped are used by the appellant do number answer to this description of sheet but on the companytrary can only be regarded as shapes falling under tariff entry 7210.10. The rates of duty of this is Rs. 365/- per ton which is the same as that on waste and scrap of steel under tariff entry 7203.20. It is this duty of Rs. 365/- per ton which has to be paid by the appellant on those pieces of steel or off-cuts which are cleared by the appellant for use in the manufacture of ancillary items and number Rs. 715/- per ton as demanded by the respondent.
B. SINHA, J. The Appellant along with one Prakash and Babulal was prosecuted for companymission of an offence under Section 302 of the Indian Penal Code. A First Information Report FIR was lodged by Nathuram PW-1 . He was the elder brother of the deceased Ramkishan. In the FIR, it was alleged that on 28.2.1986 at about 7.45 a.m. all the three accused persons armed with axe, lathi and musal came to their house. They asked the deceased Ramkishan number to companystruct wall on their land and to do so on their own. Ramkishan asserted that the land belonged to him whereupon the Appellant herein is said to have been given a blow by axe on his head. Babulal is said to have given a blow on the deceased by his musal on his chest. Savitri, wife of Nathuram PW-3 allegedly rushed to save him. She allegedly was assaulted by Prakash by inflicting lathi blow on her head and shoulder. A case was instituted against the accused persons named in the F.I.R. under Sections 324 and 506 of the Indian Penal Code. Ramkishan was taken to Gwalior Hospital for further treatment. He died on 2nd March, 1986, whereupon the offence was altered to one under Section 302 of the Indian Penal Code. In the post mortem examination only one injury was found to have been suffered by the deceased. It was, therefore, opined by the Trial Court that Prakash and Babulal had numberrole to play in the companymission of the offence. They were, thus, acquitted. The State did number prefer any appeal thereagainst. The Appellants appeal, however, before the High Court has been dismissed by the impugned judgment. The Appellant is, thus, before us. Mr. Uday Umesh Lalit, learned senior companynsel appearing on behalf of the Appellant would companytend that numbercut injury having been found by the doctor who companyducted the autopsy and furthermore in view of the statement of PW-4 that Babulal had inflicted the injury on the head of the deceased, numbercase is said to have been made out for companyvicting the Appellant under Section 302 of the Indian Penal Code. In any event, having regard to the fact that the deceased suffered only one blow on his person in the companyrse of a quarrel as a result whereof both the groups suffered injuries, only a case under Section 304, Part II should be held to have been made out. The case of the prosecution was involvement of number only the Appellant herein but also Prakash and Babulal. The learned trial judge opined that there was hardly any evidence against Prakash. Babulal who is said to have assaulted the deceased on his chest by a musal, which is a hard and blunt substance had since been acquitted by the learned Trial Judge as numbersuch injury was found on the person of the deceased. The Appellant allegedly assaulted the deceased by the sharp side of the axe. It was so stated by PW-3 Savitri. PW-1 Nathuram and PW-2 Nandkishore were declared hostile. PW-4 Ramsakhe was also declared hostile when he deposed that Babulal had caused head injury to the deceased by musal. The learned Trial Judge as also the High Court principally relied on the testimony of PW-3 Savitri. She was stated to have injuries. According to her, there was hot exchange of words as regards companystruction of the wall. According to her, after the assault by axe on the head of the Ramkishan allegedly caused by the Appellant, he although fell down, Babulal inflicted a musal blow on his chest due to which only he became unconscious. She further stated that Prakash came from behind and inflicted lathi blows on his back as a result whereof also he became unconscious. He allegedly started vomiting blood and bleeding from his head also started. On her intervention as also that of Ramsakhe, Nandkishore, Nathuram, Prakash is said to have inflicted a lathi blow on her head. She also in her crossexamination accepted that she had number seen whether Prakash gave a lathi blow to the deceased or number. It, however, appears that Babulal had also suffered an injury. A case was registered in relation thereto. The injury on the person of the Babulal has number been explained by the prosecution. The fact that there had been quarrel between the parties is accepted. Although the accused persons were charged for companymission of an offence under Section 323 of the Indian Penal Code for causing injury on Savitri, they were acquitted of the said charge. Two doctors examined the deceased and treated him. According to Dr. C.M. Tripathi PW-11, a fracture was found in the bone of left temple of Ramkishan as was evident from the X-ray taken for that purpose. According to him, such an injury may be caused due to fall on or companyliding with a solid object. PW-12 is Dr. H.P. Jain. He, however, in his deposition stated that the deceased suffered a cut injury. He found the following injuries on the body of the deceased Ramkishan Incised wound - 3 x l x l/2 over the left parietal region of the scalp. Bleeding from both the numbertrils present and his general companydition was very poor. He was referred to district hospital, Shivpuri. The post mortem examination on the dead body was companyducted by Dr. B.K. Diwan PW-16. According to the said witness, the wound was caused by striking with a hard, heavy and blunt object. In his cross-examination, he stated The said wound may occur due to falling on heavy object. It may cause also due to falling on lying Phawara or heavy stone. The said internal injury was found by opening the four stitches of 4 c.m. long wound under the same wound. No question arise that the said injury is cut injury. There was 99 chance of saving the deceased if operation of the said injury had been companyducted on the same day. I cant say why the operation of the wound number be companyducted before that. Any way this patient was admitted in our hospital on 1/3/86, and looking his serious companyditions operation would number have been companyducted. It is written itself in the marg on 5/3/86 that the said patient is referred to Gwalior Hospital from Shivpuri Hospital. I dont know that the marg is written in whose hand. He companyld number give a definite opinion as to whether the injury was crushed injury or stitched injury. He, thus, made a positive statement. PW-1 although attributed overt act on the part of the Appellant and Babulal but did number attribute any overt act on the part of Prakash. According to him, Prakash came after the incident took place. He companyld number, therefore, say what role Prakash had to play in the incident. PW-2 is Nandkishore. He categorically stated that the Appellant had given one blow from Kulahari from its sharp side on the left skull of Ramkishan and Babulal gave one musal blow on his chest. He also testified that Prakash had also assaulted the deceased. The house in which the deceased was residing, admittedly belonged to PW2. He sold the same to Ramkishan. He also categorically stated that Prakash did number do anything. At that he was declared hostile. He, however, admitted that the dispute between the parties had been going on for more than a week before the companystruction of the wall took place. It is also interesting to numbere that, according to Ramkishan, as stated by the prosecution witness that had such objection been taken before actual companystruction of the wall had taken place, he might number have done so but having raised the companystruction upto a height of four feet it would number be possible for him to remove the same. PW-2, however, accepted that Babulal had reached the police station before them. He, according to the said witness, had been going ahead of them when the deceased was being taken to the police station. In the First Information Report lodged by Nathuram, it was alleged Kailash said to Ramkisan that you companystruct the wall of the room, which you are companystructing, by one hand back. Then Ramkisan replied that you have numberhing to do in that wall then why are you telling for removing. If you had told earlier then I would have removed it but number it has been companystructed. How I shall demolish it The learned Trial Judge in his judgment although numbericed that Babulal suffered simple injuries on his person and the prosecution had number explained the same but did number proceed to companysider the legal implication thereof. He also came to the companyclusion that it was the Appellant who inflicted an axe blow on the head of the deceased. PW-4 although was declared hostile, in his examination-in-chief which has number been disputed, stated that prior to the actual incident, abuses were being hurled by the parties. The medical evidence apparently evidently does number tally with the ocular evidence. PW-16 in his evidence, as numbericed hereinbefore, categorically stated that under numbercircumstances injury companyld be caused by a sharp cutting weapon. He was definitely of the opinion that the injury was caused by a hard and blunt substance. It may be true that Dr. H.P. Jain PW-12 found an incised wound. The place of injury was on the parital region. In certain situation, the wounds produced by a blunt instrument may simulate appearances of an incised wound. It was so stated in Glaister and Rentous Medical Jurisprudence and Toxicology in the following terms Under certain circumstances, and in certain situations on the body, wounds produced by a blunt instrument may simulate the appearances of an incised wound. These wounds are usually found over bone which is thinly companyered with tissue, in the regions of the head, forehead, eyebrow, cheek, and lower jaw, among others. When such a wound exposes hair-bulbs at its edges, it is possible by examining these carefully to decide whether they have been cut or crushed and thus establish whether the wound was caused by a sharp or blunt instrument. As a rule, especially in the living subject, a wound produced by a blunt instrument will disclose some degree of bruising and swelling of the edges and the deeper tissues will be less cleanly severed than when divided by a sharp-cutting instrument. In Shankaria v. State of Rajasthan, 1978 4 SCC 453, this Court opined After a careful examination of the statements of the Doctors, the learned Judges of the High Court came to the companyclusion that the injuries found on Swaran Singh and Jarnail Singh companyld be caused with the Ghota Article 1 . The injuries on the victims were located on the head. The scalp over the head is taut. Even an injury caused with a blunt weapon on the head, ordinarily produces a gaping wound, the edges of which if number carefully examined under a magnifying lense, can be mistaken for these of an incised wound. This was the mistake companymitted by Dr Jaswant Singh and he had companyrage enough to admit and companyrect it in further examination before the High Court. Thus companysidered, there was numbercontradiction between the companyfessional statement and the medical testimony in regard to the nature of the inflicting weapon. Rather, the medical evidence taken as whole, including the statement of Dr Jaswant Singh be fore the High Court, lends valuable support to the companyfession Ex. P-39 inasmuch as it is stated therein that the injuries to the victims were caused with the Ghota Article 1 . The possibility of the deceased, thus, having been hit by a hard and blunt weapon cannot be totally ruled out. PW-11 in his statement opined that such an injury is also possible to be caused when a person falls on a solid object. The fact that there had been a quarrel between the parties is number in dispute. The dispute between the parties was over the companystruction of a wall. If PW-2 is to be believed, quarrel in regard thereto had been going on for about a week. According to the prosecution witnesses, labourers were engaged to companystruct the wall. Both the deceased and PW-3 were helping the labourers in regard thereto. If the companystruction of the wall was being carried out at the time of or just before the incident and the companystruction had reached upto a height of four feet, the same must have been started early in the morning. It is only thereafter the accused persons came and protested. Abuses had been hurled by both sides. Babulal, as numbericed hereinbefore, had suffered injury. The genesis of the occurrence, thus, cannot be said to have been proved. All prosecution witnesses attributed specific overt acts on Babulal as well Prakash. Except PW-3 numberody supported the prosecution case in regard to the alleged overt act on the part of Prakash. The Trial Judge did number also find Babulal to be guilty of companymission of offence. Although the companyrts below relied upon the evidence of Savitri, injuries on her person had number been proved. All the accused persons have been acquitted of the charge of causing an injury on her. Evidently, there was numberpre-meditation on the part of the appellant or his associates. The quarrel must have erupted suddenly. Only one blow was given. It might be with the blunt side of the axe. It may be true that only because one blow was hurled, the same by itself may number be a ground to arrive at a companyclusion that the injury inflicted was number sufficient to cause death but in a case of this nature the entire attending circumstances must be taken into companysideration for the purpose of finding out the nature of the actual offence companymitted. The learned companynsel for the Respondent has relied upon a decision of this Court in Virsa Singh v. The State of Punjab, 1958 SCR 1495 wherein Vivian Bose, J. opined that infliction of one injury by accused may be sufficient to hold him guilty for companymission of an offence under Section 302 of the Indian Penal Code stating In companysidering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of companyrse, number necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has numberknowledge of anatomy companyld never be companyvicted, for, if he does number know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of companyrse, that is number the kind of enquiry. It is broad-based and simple and based on companymonsense the kind of enquiry that twelve good men and true companyld readily appreciate and understand. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 thirdly First, it must establish, quite objectively, that a bodily injury is present Secondly, the nature of the injury must be proved These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was number accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary companyrse of nature. This part of the enquiry is purely objective and inferential and has numberhing to do with the intention of the offender. The learned Judge opined that it would number matter if there was an intention to cause death or the injury was sufficient to cause death in the ordinary companyrse of nature. The said observations, however, would be subject to the objective findings of the statutory pre-requisites intention to cause the bodily injury being one of them. Each case has to be companysidered on its own facts. It is true that for bringing the case within Exception 4 to Section 300 of the Indian Penal Code, the companyrt has to arrive at a companyclusion that the act was companymitted without pre-meditation ii in a sudden quarrel iii without the offenders having taken undue advantage or iv acted in a cruel or unusual manner, A holistic view of the matter in a case of this nature, in our. opinion, was required to be taken. The learned Sessions Judge and the High Court proceeded on the basis that the deceased suffered an incised wound. As a logical companyollary the offence is said to have been companymitted by the Appellant. When, however, oral evidence is found to be inconsistent with the medical evidence, the question of relying upon one or the other would depend upon the facts and circumstances of each case. No hard and fast rule can be laid down therefor. A major portion of the story has been discarded by the learned Trial Judge, i.e., in regard to the part played by Prakash and Babulal. Prosecution witnesses have given up their story that Prakash had any role to play. It will bear repetition to state that Babulal was exonerated on the ground that numberhard and blunt injury was suffered by the deceased on his chest. Even if we do number accept the statements of PW-4 that it was Babulal who caused the head injury with his musal, in view of the statements of other prosecution witnesses it is possible to arrive at a finding that the said injury was caused number from the sharp end but from the blunt side of the axe. The importance of infliction of one injury in this case must be judged on the touchstone of the following circumstances For all intent and purport, the deceased appeared to have accepted, as would appear from the evidence of PW-2, that the wall was being companystructed on the land of the Appellant. Despite quarrel having been going on between the parties for about a week, companystruction of the wall companymenced early in the morning and by the time the accused came to know thereof, wall to the height of four feet had already been raised. The deceased, if PWs 2 and 3 are to be believed, put forth a companytention that as companystruction had already been raised, he was number in a position to demolish the same. Admittedly, there had been abuses from both sides followed by a quarrel. Under what circumstances, injuries were caused on Babulal is number known. Despite such grievous injuries having been found on the person of the deceased by all the accused, they were number apprehended. Babulal was allowed to go ahead of the prosecution witnesses to police station. A First Information Report was lodged by him. According to the defence, Babulal had also suffered injury. The injury on the person of the Babulal had number been explained. The injuries on his person might have been simple but the same was required to be explained keeping in view of the fact that the Appellant had raised a plea of selfdefence. In a case of this nature, where one of the accused had suffered an injury, the prosecution in all fairness should have brought on records the materials found during investigation of both the cases. It is number the case of the prosecution that there had been a premeditation. Babulal and Prakash, if the prosecution case was to be believed, also companyld have been companyvicted under Section 302/34 of the Indian Penal Code. The fact that they were number found guilty under the aforementioned provisions goes to show that they were number involved in the matter. If, thus, there exists a doubt in view of the deposition of PW-11 that under numbercircumstances the injury companyld have been caused by a sharp cutting weapon, the Appellant must have hit the accused from the blunt side of the axe. This itself goes a long way to judge as to whether the Appellant had any intention to cause the death of the deceased. Recently in Pappu v. State of Madhya Pradesh, 2006 7 SCALE 24, a Division Bench of this Court opined A sudden fight implies mutual provocation and blows on each side. The homicide companymitted is then clearly number traceable to unilateral provocation, number in such cases companyld the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is numberprevious deliberation or determination to fight. A, fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had number aggravated it by his own companyduct it would number have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused a without premeditation, b in a sudden fight c without the offenders having taken undue advantage or acted in a cruel or unusual manner and d the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found In Surendra Anr. v. State of Maharashtra, 2006 8 SCALE 469, wherein a plea of self-defence was raised, this Court observed We are number unmindful of the fact that in all circumstances injuries on the person of the accused need number be explained but a different standard would be applied in a case where a specific plea of right of private defence has been raised. It may be true that in the event prosecution discharges its primary burden of proof, the onus would shift on the accused but the same would number mean that the burden can be discharged only by examining defence witnesses. The learned companyrts below companymitted a manifest error of law in opining that the Appellants had number discharged the initial burden which is cast on them. Even such a plea need number be specifically raised. The Courts may only see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case. It was further observed The defence of the Appellants, therefore, companyld number have been wished away. In a case of this nature, it was necessary on the part of the prosecution to explain the injuries on the part of the accused. The investigation of the entire cases and particularly in regard to the fact that there were cross cases, a fair investigation was expected. The possibility of PW-3 and the deceased being the aggressors cannot be ruled out. It would bear repetition to state that they had been bearing grudge against Appellant No. 1. See also Surendra Singh Bittu v. State of Uttaranchal, 2006 4 SCALE 647, Siva Kumar v. State by Inspector of Police, 2006 1 SCC 714 and Hafiz State of U.P., 2005 12 SCC 599. In Deo Narain v. The State of U.P., 1973 3 SCR 57, this Court stated What the High Court really seems to have missed is the provision of law embodied in Section 102 of the IPC. According to that section the right of private defence of the body companymences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to companymit the offence, though the offence may number have been companymitted, and such right companytinues so long as such apprehension of danger to the body companytinues. The threat, however, must reasonably give rise to the present and imminent, and number remote or distant danger. This right rests on the general principle that where a crime is endeavoured to be companymitted by force, it is lawful to repel that force in self-defence. To say that the appellant companyld only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a companyplete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and number for punishing the aggressor for the offence companymitted by him. It is a preventive and number punitive right. The right to punish for the companymission of offences vests in the State which has a duty to maintain law and order and number in private individuals. If after sustaining a serious injury there is numberapprehension of further danger to the body then obviously the right of private defence would number be available. In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the party of the companyplainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right In Bishna Alias Bhiswadeb Mahato and Ors. v. State of W.B., 2005 12 SCC 657, it was stated Right of private defence is number defined. Nothing is an offence in terms of Section 96 of the Penal Code, if it is done in exercise of the right of private defence. Section 97 deals with the subject-matter of private defence. The plea of right of private defence companyprises the body or property. It, however, extends number only to the person exercising the right but to any other person. The right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Sections 96 and 98 companyfer a right of private defence against certain offences and acts. Section 99 lays down the limit therefor. The right companyferred upon a person in terms of Sections 96 to 98 and 100 to 106 is companytrolled by Section 99. In terms of Section 99 of the Penal Code, the right of private defence, in numbercase, extends to inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides that the right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions enumerated therein, namely, First - Such an assault, as may reasonably cause the apprehension that death will otherwise be the companysequence of such assault Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the companysequence of such assault. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden in this behalf is on the accused. The case of Appellant does number satisfy the tests laid down therein. Although a case in regard to exercise of right of private defence has number been established, we are of the opinion that there are sufficient materials on record to establish that the deceased suffered a single blow at the hands of the Appellant on a sudden provocation and without any premeditation. We would be failing in our duty, if we do number take a companyple of recent decisions of this Court. In Pulicherla Nagaraju Nagaraja Reddy v. State of A.P., 2006 8 SCALE 133, a Division Bench of this Court opined that only because a solitary blow was given on a vital part of the body, the same by itself would number necessarily lead to the companyclusion that the accused was guilty under Section 304 Part II of the Indian Penal Code and number under Section 302 thereof. Therein, the companyrt opined Therefore, the companyrt should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be numberintention. There may be numberpre-meditation. In fact, there may number even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was numberintention to cause death. It is for the companyrts to ensure that the cases of murder punishable under Section 302, are number companyverted into offences punishable under Section 304 Part I II, or cases of culpable homicide number amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a companybination of a few or several of the following, among other, circumstances i nature of the weapon used ii whether the weapon was carried by the accused or was picked up from the spot iii whether the blow is aimed at a vital part of the body iv the amount of force employed in causing injury v whether the act was in the companyrse of sudden quarrel or sudden fight or free for all fight vi whether the incident occurs by chance or whether there was any premeditation vii whether there was any prior enmity or whether the deceased was a stranger viii whether there was any grave and sudden provocation, and if so, the cause for such provocation ix whether it was in the heat of passion x whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner xi whether the accused dealt a single blow or several blows. The above list of circumstances is, of companyrse, number exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may. However, in Rajinder v. State of Harvana, 2006 6 SCJ 330, another Division Bench of this Court upon analyzing the provisions of Section 300 of the Indian Penal Code and referring to the celebrated case of Virsa Singh v. State of Punjab, AIR 1958 SC 465 stated the law thus These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singhs, case supra for the applicability of clause Thirdly is number ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following companyditions are satisfied i.e. a that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury and b that the injury intended to be inflicted is sufficient in the ordinary companyrse of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary companyrse of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted. Thus, according to the rule laid down in Virsa Singhs case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary companyrse of nature, and did number extend to the intention of causing death, the offence would be murder. Illustration c appended to Section 300 clearly brings out this point. Clause c of Section 299 and clause 4 of Section 300 both require knowledge of the probability of the act causing death. It is number necessary for the purpose of this case to dilate much on the distinction between these companyresponding clauses. It will be sufficient to say that clause 4 of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been companymitted by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. The above are only broad guidelines and number cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may number be companyvenient to give a separate treatment to the matters involved in the second and third stages. In that case, even applying the said principles, the companyviction under Section 304 Part II of the Indian Penal Code was only maintained. Applying the aforementioned principles of law, we are of the opinion that the Appellant cannot be held to be guilty of companymission of an offence under Section 302 of the Indian Penal Code but under Section 304, Part II of the Indian Penal Code.
2001 Supp 3 SCR 349 The following Order of the Court was delivered In this appeal, by special leave, the order of the High Court of Kerala in R.P. No. 95 of 1995 dated October 11, 1996, is brought under challenge. The appellants are the tenants of a shop room. The original tenant died and the appellants are his legal representatives hereinafter they are referred to as the tenants . The respondents are the landlords. They filed an application under sub-section 3 of Section 11 of the Kerala Buildings Lease and Rent Control Act, 1965 for short the Act for eviction of the tenants on the ground that they bona fide need the premises for setting up business of their daughter and son-in-law who are dependent on them. The tenants companytested the petition denying that the daughter and son-in-law are number dependent on the respondent. The tenants also denied the bona fide requirement of the landlords. The learned Rent Controller having companysidered the material placed on record found that the need of the landlords was bona fide and accordingly ordered eviction of the tenants on December 21, 1993. An appeal against the said judgment was unsucessful before the Rent Control Appellate Authority District Judge , Thalassery. The appeal having been dismissed on November 1.7, 1994, the tenants filed a revision petition vide R.P. No. 95 of 1995 in the High Court of Kerala which was also dismissed by the impugned order. The short question that arises for companysideration in this appeal is whether the respondents bona fide need the demised premises. The respondents filed petition for eviction of the appellant under Section 11 3 of the Act which is set out hereunder 11 3 . A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him Provided that the Rent Control Court shall number give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons in any particular case it will be just and proper to do so Provided further that the Rent Control Court shall number give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is numbersuitable building available in the locality for such person to carry on such trade or business Provided xxxx xxxx xxxx Provided xxxx xxxx xxxx A plain reading of the provision of sub-section 3 of Section 11 shows that it enables a landlord to seek possession of the building from his tenant by making an application to the Rent Control Court if he bona fide needs the building for his own occupation or for the occupation by a member of his family dependent on him. The sub-section takes numbere of number only bona fide need of the landlord but also the need of the members of his family dependent on him. Where the landlords bona fide needs the building number for his own occupation but for occupation of a member of his family, it must be shown that such a member of his family is dependent on him. The mandate of the first and the second provisos is directed to the Rent Control Court. The first proviso directed Directed that the Rent Control Court shall number give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied, for special reasons, in any particular case, that it will be just and proper to do so, it has to record the special reasons. The legislative mandate companytained the second proviso is number to give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is numberother suitable building available in the locality for such person to carry on such trade or business. The third and the fourth provisos are number relevant for the present discussion. The question number urged before us, namely, whether the daughter and son-inlaw of the landlords, with three children, living separately, companyld be said to be dependent on the landlords was number put in issue in the Trial Court number was it urged before the Appellate Court or the High Court. We cannot, therefore, permit Mr. Inam to raise it for the first time in this Court. The next point urged by Mr. Inam is that the daughter of the respondents are having other number-residential and residential buildings of her own and therefore they are number entitled to the benefit of eviction of the building in view of the first proviso to sub-section 3 of Section 11. This plea also cannot be entertained because as pointed out by Mr. Iyyer numbersuch plea was urged before the Rent Control Authorities or the High Court. The case throughout proceeded on the ground whether the landlords needed the premises bona fide. On this ground we have heard the learned companynsel for the parties. We are of the view that if the need of the landlords for his own occupation has to be bona fide so also need of the members of the family of the landlord dependent on him and should satisfy the test of being bona fide. In the instant case, it has to be determined whether the need of the daughter and son-in-law of the landlords who own numberresidential as well as residential buildings, can be said to be bona fide. Mr. Iyyer submits that this aspect was number adverted to in earlier stages of the proceedings. Inasmuch as the parties did number address their arguments on this aspect of the matter, we companysider it just and appropriate to remand the case to the Rent Control Appellate Authority District Judge to give opportunity to the parties of being heard and decide the question Can the respondents be said to need the building bona fide if it is meant for the occupation of their dependent married daughter who owns residential and number-residential buildings? In this view of the matter the order under challenge is set aside. R.C.A. No.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 76 and 77 of 1961. Appeals from the judgment and decree dated May 19, 1955, of the Punjab High Court in Regular First Appeals Nos. 28, 12 and 13 of 1948 respectively. Gopal Singh for R. S. Narula, for the appellant in C. A. No. 76 of 1961 . Achhru Ram and Naunit.Lal, for appellant No. I in C. A. Nos. 77 and 78 of 1961 . Bishan Narain and B. P. Maheshwari, for respondents Nos. 9 and 18 to 20 in C. A. No, 77 of 1961 . 1963. March 14. The Judgment of the Court was delivered by AYYANGAR J.-These three appeals, which are before us on certificates of fitness granted by the High Court of Punjab, arise out of two suits for the recovery of amounts due on mortgages executed by one Mohinder Singh who was a companytractor in Delhi. Mohinder Singh is number deceased and is number represented in these proceedings by his widow and son. Mohinder Singh owned as many as eight properties in Delhi and over one or other of these he created successively 24 mortgages between September 1943 and July 1944 and also executed a sale in respect of one item of these properties. The companytentions urged in these appeals arise out of companyflicts between the rights of some of these mortgagees inter se, between some of them and the purchaser of one of the properties. It is however unnecessary for the purpose of deciding these points to set out the details of every one of these several mortgages or their history. Appeals 77 and 78 may first be companysidered, The facts necessary to appreciate the sole point raised by Mr. Achhru Ram, learned Counsel for the appellant-- Jagdish Chand are these The property companycerned in the two appeals is plot No. 1, Pusa Road in Block 34 with a bungalow thereon. A mortgage for Rs. 10,000/- was created over this and certain other properties we are, however number companycerned with these other properties in favour of one Lajwanti by Mohinder Singh by a deed dated October 19,1943. A few days later-on November 7, 1943-another mortgage was executed in her favour for Rs. 16,000/under which the property No. 1, Pusa Road was given as security. Passing over certain intermediate transactions number material for the purposes of the present appeals, a mortgage was created in favour of one Daulatram Narula inter alia on this property on January 21, 1944 to secure a sum of Rs. 60,000/-. Two days later - on January 23, 1944-the appellant, jagdish Chand, lent a sum of Rs. 10,000/- to Mohinder Singh and had a mortgage executed on No. 1, Pusa Road. Daultram Narula, the mortgagee under the deed dated January 21, 1944 obtained two further mortgages over the same. property and others on February 25, 1944 and March 14, 1944, the first for Rs. 9,500/- and the second for Rs. 10,000/-. It ought to be mentioned that the companysideration for several of the mortgages referred to earlier was in part a payment in cash to the mortgagor and in part repayment in part satisfaction of previous mortgages but this circumstance number being of any relevance we are number setting out the details of the companysideration for the several mortgages. Lastly, and this is the mortgage which is of importance for the point raised in this appeal, on July 13, 1944, Mohinder Singh created in favour of Pandit Sham Sunder an usufructuary mortgage for Rs. 1,25,000/- out of which Rs. 84,000/-was reserved with the mortgagee for payment to Daulatram Narula the sum representing the principal and interest due on his three mortgages. It is companymon ground that on the date when the mortgage was registered Sham Sunder carried out his obligation and discharged the mortgages of Daulatram by paying him Rs. 84,000/-. The amount due to Lajwanti was number paid and she accordingly brought a suit on June 14, 1945, in the Court of the Se nior-Sub-judge, Delhi for the recovery of her mortgage money which, after giving credit for the sums paid to her already by several subsequent mortgagees, came to Rs. 11,657/5/4. She impleaded as party defendants to the suit the several subsequent mortgagees. including the appellant -jagdish Chand as well as Daulatram and Sham Sunders legal representatives as he himself was dead by that date. Just like Lajwanti another mortgagee one Mukhamal--in whose favour two mortgages, one dated February 1, 1944 and another dated May 12, 1944 for Rs. 10,000/-and Rs. 9,000/-- respectively, also filed a suit for the recovery of Rs. 15,302/- and odd. As in Lajwantis suit, the several subsequent mortgagees including jagdish Chand, Daulatram and the legal representatives of Pt. Sham Sunder were also impleaded as defendants in this suit also. In these two suits the genuineness of the several mortgages was number seriouly disputed and the only point on which companytest was centred was as regards the respective rights of the several mortgagees inter se. We are companycerned in these two appeals with the claim made by the legal representatives of Sham Sunder that they were entitled by reason of their discharging the mortgage-debt of Daultram to whom they had paid Rs. 84,000/- out of the mortgage amount of Rs. 1,25,000/-to be subrogated to the rights and priorities of Daulatram under the mortgage dated January 21, 1944 for Rs. 60,000/- as against the later mortgage of January 23, of Jagdish Chand even though there was numberagreement in writing under which he stipulated for such a right. This companytention was raised both in the suit by Lajwanti as well as in Mukhamals suit. It was companytended on their behalf that though the Transfer of Property Act did number in terms apply, yet the equitable principle underlying its s. 92 viz., the right of a secured creditor who had discharged a prior encumbrancer to be subrogated to the rights and priorities of the mortgagee who he had redeemd, companyld nevertheless be invoked under s. 6 of the Punjab Laws Act. The learned trial judge, however, while acceding to this in principle, held on the basis of certain authorities to which he referred that in the absence of a specific agreement stipulating for subrogation the subsequent mortgagee was number entitled to such an equity. On this ground the right of the subrogation claimed by the legal representatives of Sham Sunder was rejected. From the rejection of this claim in the two suits Sham Sunders representatives preferred two appeals to the High Court and the learned judges allowed the appeal holding that it was number an essential companydition for claiming the right of subrogation that the creditor redeeming the mortgage should have entered into an express agreement to that effect. It is from this decision of the High Court that these two appeals have been preferred. Mr. Achhru Ram, learned Counsel for the appellant did number dispute before us the companyrectness of the view expressed by the learned judges of the High Court that in order to entitle a creditor to claim a right of subrogation it was number necessary that he should have entered into a written agreement stipulating for such a right His submission, however, was on the following lines Accepting the Law, as expounded by Sir Richard Couch in Gokuldass Gopaldass v. Ram Bux Scochand 1 , in the following terms In India the art of companyveyancing has been and is of a very simple character. Their Lordships cannot find that a formal transfer of a mortgage is ever made, or an intention to keep it alive ever formally expressed The obvious question to ask in the interests of 1 1884 L. R. 11 1. A. 126,133-134. justice, equity, and good companyscience, is, what was the intention of the party paying off the charge? He had a right to extinguish it and a right to keep it alive. What was his intention? If there is numberexpress evidence of it, what intention should be ascribed to him? The ordinary rule is that a man having a right to act in either of two ways. shall be assumed to have acted according to his interest. In the familiar instance of a tenant for life paying off a charge upon the inheritance, he is assumed, in the absence of evidence to the companytrary, to have intended to keep the charge alive. It cannot signify whether the division of interests in the property is by way of life estate and remainder, or by way of successive charges. In each case it may be for the advantage of the owner of a partial interest to keep on foot a charge upon the companypus which he has paid. as laying down the companyrect test for determining whether the right of subrogation companyld be claimed or number, Mr. Achhru Ram submitted that the law was that even where there was numberexpress agreement stipulating for subrogation, the law would presume such a right on the ground that the payer intended to act in a manner most advantageous to him, but that this was only a rebuttable presumption which would be negatived on positive proof from the companyduct or statements of such a creditor pointing to a companytrary intention. In other words, that there was numberhing to prevent its being shown that the creditor paying off the charge did number intend to preserve the mortgage which he discharged so as to obtain the priority which the discharged encumbrance enjoyed. He urged that in the present case, on the terms of the documents to which Sham Sunder was a party,, such an intention number to keep alive the discharged encumbrance of Daulatram was clearly made out. In this companynection he drew to our attention first the terms of the mortgage executed in favour of Sham Sunder on July 13, 1944, in which this Rs. 84,000/- left with the mortgagee is referred to as being held by the latter in trust for the payment of the previous encumbrancer--Daulatram. Next, he referred us to the endorsements of discharge on the mortgages of Daultram which read as if the amount due had been paid by Sham Sunder on behalf of the mortgagor--Mohinder. On this basis the companytention was urged that any intention to obtain the benefit of suborgation was clearly negatived. We do number propose to discuss the merits of this companytention, and it is number as if it is number capable of companyent refutation, because we are satisfied that the appellant should number be permitted to raise such an argument at this stage. In both the suits the legal representatives of Sham Sunder filed written statements in which they specifically stated that the discharge of the encumbrances of Daulatram was under circumstances in which they were entitled to claim the relief of subrogation. The question regarding the intention with which a prior encumbrance is discharged, whether it is with a view to obtain the priority of the mortgage paid off or number, in circumstances like the present would be a question of fact and would have to be answered on a companyspectus of the entire circumstances of the case. If the appellant was disputing the plea of Sham Sauders representatives that the intention of Sham Sunder in discharging Daulatrams mortgages was to retain the benefit of suborgation, it was for him to have raised it by proper pleading when an issue would have been struck and evidence led for and against such a companytention. At the stage of the trial the only objection raised to the claim for subrogation was based on the absence of a written agreement which the appellant companytended was a requirement of the law which had number been companyplied with. In one sense such plea would appear to assume that the intention of the party paying off the mortgage was to obtain the benefit of subrogation but that he had failed to companyply with a requirement of the law in having that intention embodied in a document. This plea was accepted by the learned trial judge and the claim for subrogation was disallowed but Sham Sunders representatives filed an appeal to the High Court. Again, at the stage of the appeal the only companytention urged before the learned judge was as regards this supposed requirement of the law that there should be a written agreement. When this plea was rejected it is obvious that on the pleadings the right to subrogation should be held to be established. The matter, however, does number stop here, because even at the stage of appeal to this Court numberpoint was made that in the instant case the presumption in favour of a person having acted to his interest and so entitled to claim subrogation was displaced by clear evidence of the partys statements or companyduct. Nor can even a trace of such plea be found in the statement of case filed in these appeals. We do number therefore companysider it proper to permit learned Counsel to urge any such ground before us. This was the only point urged in these appeals which fail and are dismissed with companyts-one set payable to the executors of the will of Pt. Sham Sunder. Civil Appeal 76 of 1961. This appeal arises out of the suit by Lajwanti already referred to. The appellant is one Brahm Parkash in whose favour Mohinder Singh executed a mortgage for Rs. 15,000/- on May 2, 1944. The property mortgaged was plot No. 44 in Block 17 A with the superstructure on it and plot No. 19 in Block No. 5. Brahm Parkash was the twentieth defendant in Lajwantis suit. Plot No. 14 of Block No. 13 was sold by Mohinder to one Mukhamal Gokul Chand by deed dated April 28, 1944. It is the claim of this Mukhamal to marshalling that is the main subject of companytroversy in this appeal. As we have stated earlier Lajwantis mortgage dated October 19, 1943, for Rs. 10,000/- companyprised of several properties including plot No. 14 which on April 28, 1944, had been sold to Mukhamal. Now Mukhamal who had been impleaded as a subsequent transferee in Lajwantis suit claimed that he was entitled to marshalling on the principle to be found in s. 56 of the Transfer of Property Act which runs as follows If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person., the buyer is, in the absence of a companytract to the companytrary, entitled to have the mortgage-debt satisfied out of the property or properties number sold to him, so far as the same will extend, but number so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for companysideration acquired an interest in any of the properties. This claim was however disallowed by the trial Judge for reasons to which it is number necessary to advert. Mukhamal Gokul Chand filed an appeal to the High Court in which he made the same prayer, The learned judges of the High Court upheld Mukhamals companytention that he was entitled to marshalling and directed that Lajwanti should proceed first against plot 44 and only for the deficiency, if any against plot 14 which Mukhamal had purchased. It is the companyrectness of this decision that is challenged by Brahm Parkash in this appeal. Mukhamal Gokul Chand has number entered appearance and the appeal has been heard ex parte. Before dealing with the companyrectness of this direction as regards marshalling it is necessary to mention one further fact. Mukhamals appeal to the High Court-Appeal 28 of 1948 was filed out of time with a petition for companydonation of delay under s. 5 of the Indian Limitation Act and the learned judges companydoned the delay and entertained the appeal. The legality and propriety of this order companydoning the delay is companyvassed before us by learned Counsel for the appellant. The facts relevant for the companysideration of this point are briefly as follows The prelliminary decree of the trial judge from which the appeal No. 28 of 1948 was filed was dated April 28,1947. An application for the grant of certified companyies was made on October 16, 1947 and the companyies were ready for delivery on October 28, 1947. The appeal, however, was actually filed only on March, 10, 1948-admittedly after the period of limitation had expired. The application to the High Court for companydoning this delay was supported by an affidavit by one Amar Nath. Before setting out the companytents of this affidavit it must be mentioned that the disturbed state of the Punjab at the time of the partition was taken into account by the legislature and by East Punjab Act 16 of 1947 the period from September 19, 1947, to November 15, 1947, was directed to be excluded in companyputing limitation for any purpose of the Limitation Act including S. 5, In the affidavit in support of the application for the companydonation of the delay it was stated that the firm of Gokul Chand had handed over the papers to their Munim on or about November 1, 1947, for filing an appeal but the Munim who was a Muslim went away to Pakistan without handing over the certified companyies of the judgment to the parties and that the companyies were received from Pakistan on March 4, 1948, a few days before the affidavit was sworn and that immediately after the receipt of the papers the appeal was filed at Simla on March 10, 1948. The learned Judges in dealing with this application observed In 1947-48 unprecedented events occurred in Delhi with the result that in some cases the whereabouts of close relations were number known for months. In the present case number a syllable is to be found on the record to show that the affidavit of Amar Nath was untrue in any particular. That being so, I have numberdoubt that there was sufficient cause for number filing the appeal in time. In these circumstances I companydone the delay in filing the appeal-Regular 1st Appeal No. 28 of 1948. Learned Counsel for the appellant submitted that the learned judges had number required the petitioner for companydonation to explain each days delay, thus departing from the accepted tests for companydonation under s. 5 of the Limitation Act. We are number, however, persuaded that the learned Judges were either unmindful of the principles on which delay should be excused or went wrong in the exercise of the discretion which they undoubtedly possessed and that, in any event, we do number companysider that this is a fit case in which we should interfere in appeal. Coming number to the merits of the appeal, learned Counsel strenuously urged that the learned judges of the High Court had misapplied the principles underlying s. 56 of the Transfer of Property Act in directing Lajwanti to proceed first against the property number sold to Gokul Chand. In this companynection learned Counsel urged two points 1 that on a proper companystruction of s. 56 and the principle underlying it the benefit of marshalling companyld number be claimed by a purchaser who happened to be a mortgagee in respect of any property belonging to the mortgagor. Learned Counsel pointed out that Mukhamal Gokul Chand had a mortgage under a deed dated February 9, 1944, over certain properties with which the appellant is number companycerned. We companysider this submission wholly without substance. When s. 56 refers to a subsequent purchaser it does number obviously exclude a purchaser who has some mortgage over property with which these proceedings are number companycerned. His mortgage rights over some other property of the mortgagor is wholly irrelevant for companysidering his rights gua purchaser of one of the properties to which opening words of s. 56 apply. The companystruction companytended for, in our opinion, has only to be stated to be rejected. The other submission of learned Counsel was that the learned judges failed to give effect to the last portion of s. 56 under which marshalling is number to be permitted so as to prejudice the rights inter alia of the mortgagees or other persons claiming under him, i.e., under the original mortgagor. Learned Counsel pointed out that the appellant having proved his mortgage and the fact that it was subsisting, the learned judges of the High Court ought to have held that any direction as to marshalling must necessarily prejudice him. We are unable to agree that this follows as any matter of law. The question of prejudice is purely one of facts which has to be pleaded and the necessary facts and circumstances established. It is obvious that the question of prejudice would be intimately companynected with the value of the property against which themortgagee is directed to proceed in the first instance. If even after paying off such a mortgage there is enough left for payment over to the subsequent encumbrancer referred to in the last portion of s. 56 it would be manifest that there would be numberquestion of prejudice. If therefore the appellant desired to invoke the benefit of the last portion of s. 56 he should have made some plea as to the value of the property and shown how it would prejudice his rights as a subsequent encumbrancer. He however made numbersuch plea and numberevidence was led as to the value of the property. Even at the stage of the appeal in the High Court the companytention that to allow marshalling in favour of the subsequent purchaser-Mukhamal-would result in prejudice to him was admittedly never put forward before the learned judges. As the point is one number of pure law but springs from the factual inadequacy of the property mortgaged to him to discharge his debt it is too late for the appellant to raise such a plea in this Court.
1996 Supp. 5 SCR 388 The following Order of the Court was delivered Leave granted The wife-respondent filed a written companyplaint before the police under Section 494 of the Indian Penal Code which after investigation was put in Court for trial of the appellant as well as his alleged second wife, the second appellant. Charge was laid against him. In entering upon plea against the charge, the husband-appellant stated True. I have number companymitted any crime. I have married after ten years of my wife deserted and went away. His plea was sought to be read as if he had admitted having married a second time. The learned Trial Magistrate recorded the prosecution evidence and came to the companyclusion that there was numberlegal evidence to prove the factum of marriage on the basis of the tests laid down by this Court in Bhaurao Shankar Lokhande Anr. v. State of Maharashtra Anr., 1965 2 SCR 837 Kanwal Ram and Ors. v. The Himachal Pradesh Administration, 1966 1 SCR 539 and Priya Bala Ghosh v. Suresh Chandra Ghosh, 1971 1 SCC 864. He thus acquitted the appellant The High Court on a private revision by the wife-respondent, upset the order of acquittal mainly on the ground that there was an admission of the First appellant in response to the charge laid against him. The High Court therefore ordered a re-trial. In our view, the High Court was in error in upsetting the well-considered order of the Trial Magistrate requiring due ceremonies of the alleged second marriage being proved so as to satisfy the tests laid down by this Court in the afore-referred cases. The plea of guilt afore-referred to companyld at best be understood to mean that the first appellant had taken a wife, but that admission did number necessarily mean that he had taken the second wife after solemnizing a Hindu marriage with her after performing due ceremonies for the marriage. Such plea, which he need number have even entered upon, and which was ignorable by the Court, did number absolve the prosecution to otherwise prove its case, that the marriage in question was performed in a regular way so as to visit him with penal companysequences. We therefore are of the view that a futile exercise has been enjoined Upon the Magistrate by the High Court in ordering a re-trial when the evidence, as it was, had been discussed and rejected threadbare. For these reasons, we think that the orders of the High Court would need upsetting, which we hereby do. At the same time, we need record the statement of learned companynsel for the first appellant to the effect that the said appellant is a class IV employee working in the State Board of Revenue, fetching about Rs. 1600 per mensem as salary our of which, under Court orders he pays, in an interim way, Rs, 400 per mensem as maintenance to the respondent-wife and his grown-up child. A genuine offer has number been made by learned companynsel to increase the said allowance, should the respondent-wife number persist in her claim in branding the first appellant as a bigamist for if he were to get companyvicted and imprisoned, she would lose the maintenance altogether. We see the force of the argument. She cannot afford to kill the goose which lays the golden egg. Hard realities of the situation require that the first appellant is number deprived of his job so that he keeps providing the necessary wherewithal to the respondent wife and his child, besides maintaining himself. Taking that into account, we should think that the appellant shall pay to the respondent and his child a sum of Rs.
J U D G E M E N T P. WADHWA, J. Leave granted. A Division Bench of the Karnataka High Court has put a question mark on the authority of the Medical Council of India for short, the Medical Council - the appellant - in its judgement dated July 16, 1997 to fix intake for admission of students to various medical companyleges in the State of Karnataka. Medical Council is aggrieved by that part of the impugned judgement where the Division Bench held that prior to insertion of Sections 10A, 10B, and 10C in the Indian Medical Council Act, 1956 for short, the Medical Council Act by the Amending Act 31 of 1993 neither the Central Government number the Medical Council companyld fix the admission capacity in the medical companyleges in the State and that this authority to determine the admission capacity in the medical companyleges vested in State by virtue of tow State enactments, namely, Karnataka State Universities Act, 1976 for short, Karnataka Universities Act and Karnataka Educational Institutions Prohibition of Capitation Fee Act, 1984 for short, Karnataka Capitation Fee Act . The Division Bench, however, held that after the amendment of the Indian Medical companyncil Act by insertion of Sections 10A, 10B and 10C, the two State enactments would yield to the extent of repugnancy and that number the power to fix admission capacity rests with the Medical Council. The Division Bench said that admission capacity for purpose of increase or decrease in each of the companylege, has got to be determined as on or before June 1, 1992 with reference to what had been fixed by the State Government or that foxed by the medical companyleges and number with reference to the minimum standard of education regulations prescribed under Section 19A, of the Medical Council Act by the Medical Council which it said were only recommendatory as held in State of Madhya Pradesh and anr. v. Kumari Nivedita Jain and ors. 1981 4 SCC 296 . Thus, according to the Division Bench future admission will, however, have to be regulated on the basis of the capacity fixed or determined by the Medical Council as provisions of Sections 10A, 10B and 10C are prospective. State of Karnataka has also filed appeal. It felt aggrieved by that part of the impugned judgment of the Division Bench where it scuttled the powers of the State to fix admission capacity to the medical companyleges. Stand of the State is that Section 10A is applicable only when it companyes to increase the existing admission capacity in the companyleges and that the intake capacity already fixed by the State under its statutory powers companyld number be reduced. In the third appeal filed by the Rajiv Gandhi Dental College and which pertains to Dental Colleges under the provisions of the Dentists Act, 1948, there is similar challenge to the authority of the Dental Council of India to fix the intake of admission of students to Dental Colleges. The provisions of this Act are in peri materia to that of the Indian Medical Council Act and decision in the appeal filed by the Medical Council of India would be applicable to the appeal filed by Rajiv Gandhi Dental College. Impugned Division Bench decision was rendered in an appeal against the judgment dated September 20, 1996 of a single judge G.C. Bharuka, J. of the High Court in a writ petition filed as a Public Interest Litigation. Learned Single Judge companysidered the whole spectrum of law relating to admission in Medical Colleges in the State and held as under I s.53 10 of the State Universities Act and Sec.4 1 b of the State Capitation Fee Act empowering the universities and or the State Government to fix or increase intakes of the medical companyleges being repugnant to Sections 10A, 10B and 10C of the Central Act, are held as void and inoperative. II. The power in relation to fixation and or increase of the admission capacities of the medical companyleges has to be governed strictly and exclusively under the provisions of Sec.10A/10C of the Central Act. III. No medical companylege can admit any student in excess of its admission capacity fixed by the Council subject to any increase thereof as approved by the Central Government under and in accordance with the provisions of Sec.10A or Sec.10C of the Central Act. IV. The regulations framed on the aspects of medical education referred to in Secs.19A and 33 of the Central Act are mandatory in nature. The State of Karnataka went in appeal against the judgment of the single Judge which, as numbered above, was partly allowed. In the appeal , the Divisions Bench took the view that Sections 10A, 10B and 10C of the Act have only prospective operation. While the Medical Council and the Central Government companytend that learned single Judge was companyrect in this approach to the matter in companytroversy, the State of Karnataka says that introduction of Sections 10A, 10B and 10C in the Act made numberdifference to its authority to regulate admission to Medical Colleges in view of the judgement of this Court in A.K. Singh vs. State of Bihar 1994 4 SCC 401 and that power under Section 10A of the Medical Council Act was companyfined only to increasing the existing admission capacity and the intake capacity already fixed by the State under its statutory powers companyld number be reduced. When the matter came up before this Court in special leave petition SLP No.14839/97 filed by the Medical Council, this Court, while issuing numberice, stayed the impugned judgment of the Division Bench. In the appeal filed by the Rajiv Gandhi Dental College, it was also directed that the State would companyfine the admissions to the dental companyleges to the intake capacity as fixed by the Dental Council. Before we companysider the rival companytentions, we may set out the relevant provisions of law but even before that we take numbere of the observations of this Court in State of Kerala vs. Kumari T.P. Roshana Anr. 1979 1 SCC 572 where the Court said as under - The Indian Medical Council Act, 1956 has companystituted the Medical Council of India as an expert body to companytrol the minimum standards of medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus there is an overall invigilation by the Medical Council to prevent substandard entrance qualifications for medical companyrses. The Indian Medical Council Act, 1956 Sections 2 of the Medical Council Act defines various terms used in the Act. Approved institution means a hospital, health centre or other such institution recognised by a University as an institution in which a person may undergo the training, if any, required by this companyrse of study before the award of any medical qualification to him Council means the Medical Council of India companystituted under this Act medical institution means any institution, within or without India, which grants degrees, diplomas or licences in medicine recognised medical qualification means any of the medical qualifications included in the Schedules University means any University in India established by law and having a medical faculty. Sec. 10-A. Permission for establishment of new medical companylege, new companyrse of study, etc.- Notwithstanding anything companytained in this Act or any other law for the time being in force- a numberperson shall establish a medical companylege or b numbermedical companylege shallopen a new or higher companyrse of study or training including a post-graduate companyrse of study or training which would enable a student of such companyrse or training to qualify himself for the award of any recognised medical qualification or increase its admission capacity in any companyrse of study or training including a post-graduate companyrse of study or training except with the previous permission of the Central Government obtained in accordance with the provisions of this section. Explanation 1.- For the purposes of this section, person includes any University or a trust but does number include the Central Government. Explanation 2.- For the purposes of this action, admission capacity, in relation to any companyrse of study or training including postgraduate companyrse of study or training in a medical companylege, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such companyrse or training. 2 a Every person or medical companylege shall, for the purpose of obtaining permission under subsection 1 , submit to the Central Government a scheme in accordance with the provisions of clause b and the Central Government shall refer the scheme to the Council for its recommendations. The scheme referred to in clause a shall be in such form and companytain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed. On receipt of a scheme by the Council under sub-section 2 , the Council may obtain such other particulars as may be companysidered necessary by it from the person or the medical companylege companycerned, and thereafter, it may,- a if the scheme is defective and does number companytain any necessary particulars, give a reasonable opportunity to the person or companylege companycerned for making a written representation and it shall be open to such person or medical companylege to rectify the defects, if any, specified by the companyncil b companysider the scheme, having regard to the factors referred to in sub-section 7 , and submit the scheme together with its recommendations thereon to the Central Government. The Central Government may, after companysidering the scheme and the recommendations of the Council under sub-section 3 and after obtaining, where necessary, such other particulars as may be companysidered necessary by it from the person or companylege companycerned, and having regard to the factors referred to in sub-section 7 , either approve with such companyditions, if any, as it may companysider necessary or disapprove the scheme and any such approval shall be a permission under subsection 1 Provided that numberscheme shall be disapproved by the Central Government except after giving the person or companylege companycerned a reasonable opportunity of being heard. Provided further that numberhing in this sub-section shall prevent any person or medical companylege whose scheme has number been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the first time under sub-section 2 . 5 6 The Council, while making its recommendations under clause b of sub-section 3 and the Central Government, while passing an order, either approving or disapproving the scheme under sub-section 4 , shall have due regard to the following factors, namely- a whether the proposed medical companylege or the existing medical companylege seeking to open a new or higher companyrse of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Council under section 19A or, as the case may be, under section 20 in the case of post-graduate medical education b whether the person seeking to establish a medical companylege or the existing medical companylege seeking to open a new or higher companyrse of study or training or to increase its admission capacity has adequate financial resources c whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical companylege or companyducting the new companyrse of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme d whether adequate hospital facilities, having regard to the number of students likely to attend such medical companylege or companyrse of study or training or as a result of the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme e whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical companylege or companyrse of study or training by persons having the recognised medical qualifications f the requirement of manpower in the field of practice of medicine and g any other factors as may be prescribed. Sec.10.B Non-recognition of medical qualifications in certain cases.- 1 2 Where any medical companylege increases its admission capacity in any companyrse of study or training except with the previous permission of the Central Government in accordance with the provisions of section 10A, numbermedical qualification granted to any student of such medical companylege on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act. Explanation.- For the purposes of this section, the criteria for identifying a student who has been granted a medical qualification on the basis of such increase in the admission capacity shall be such as may be prescribed. Sec.10-C. Time for seeking permission for certain existing medical companyleges, etc.- If after 1st day of June, 1992 and on and before the companymencement of the Indian Medical Council Amendment Act, 1993 any person has established a medical companylege or any medical companylege has opened a new or higher companyrse of study or training or increase the admission capacity, such person or medical companylege, as the case may be, shall seek, within a period of one year from the companymencement of the Indian Medical Council Amendment Act, 1993, the permission of the Central Government in accordance with the provisions of section 10A. If any person or medical companylege, as the case may be, fails to seek the permission under subsection 1 , the provisions of section 10B shall apply, so far as may be, as if, permission of the Central Government under s10A has been refused. Under Section 11 of the Medical Council Act, qualifications granted by any University or medical institution in India which are included in the First Schedule shall be recognised medical qualifications for the purposes of this Medical Council Act. Any University or medical institution in India which grants a medical qualification number included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after companysulting the Medical Council, may, by numberification in the Official Gazette, amend the First Schedule so as to include such qualification therein. Under Section 16 every university or medical institution in India which grants a recognised medical qualification shall furnish such information as the Medical Council may, from time to time, require as to the companyrses of study and examinations to be undergone for the purpose of attaining qualification and other details requisite for obtaining such qualification. Under Section 17 of the Medical Council Act, the Executive Committee of the Medical Council shall appoint medical inspectors to inspect any medical institutions, companylege, hospital or other institution where medical education is given or to attend any examination held by any University or medical institution for the purpose of recommending to the Central Government recognition of medical institution. Similarly, the Medical Council is authorised to appoint visitors for the same purpose. The inspectors and the visitors are required to report on the adequacy of the standards of medical education including staff, equipment, accommodation, training and other facilities prescribed for giving medical education or on the sufficiency of every examination which they attend. Then companye Sections 19 and 19A and which have been set out above providing for laying down minimum standards of medical education and withdrawal of recognition. These are as under Sec.19.Withdrawal of recognition.- When upon report by the Committee or the visitor, it appears to the Council- a that the companyrse of study and examination to be undergone in, or the proficiency required from candidates at any examination held by, any University or medical institution, or b that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such university or medical institution or in any College or other institution affiliated to that University, do number companyform to the standards prescribed by the Council the Council shall make a are presentation to that effect to the Central Government. After companysidering such representation, the Central Government may send it to the State Government of the State in which the University or medical institution is situated and the State Government shall forward it along with such remarks as it may choose to make to the University or medical institution, with an intimation of the period within which the University or medical institution may submit its explanation to the State Government. On the receipt of the explanation or, where numberexplanation is submitted within the period fixed, then on the expiry of that period, the State Government shall make its recommendations to the Central Government. The Central Government after making such further inquiry, if any, as it may think fit, may, by numberification in the Official Gazette, direct that an entry shall be made in the appropriate Schedule against the said medical qualification declaring that it shall be a recognised medical qualification only when granted before a specified date, or that the said medical qualification if granted to students of a specified companylege or institution affiliated to any university shall be a recognised medical qualification only when granted before a specified date or, as the case may be, that the said medical qualification shall be a recognised medical qualification in relation to a specified companylege or institution affiliated to any University only when granted after a specified date. Sec.19.A Minimum standards of medical education.- 1 The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications other than postgraduate medical qualifications by Universities or medical institutions in India. Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or amendment thereof, as the case may be, to the Central Government for sanction, take into companysideration the companyments of any State Government received within three months from the furnishing of companyies aforesaid. The Committee shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit. Sec.33. Power to make regulations. The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and, without prejudice to the generality of this power, such regulations may provided for- a to f fa the form of the scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fee payable with the scheme under clause b of sub-section 2 of section 10A fb any other factors under clause g of sub-section 7 of section 10A fc the criteria for identifying a student who has been granted a medical qualification referred to in the Explanation to sub-section 3 of section 10B g to i j the companyrses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in Universities or medical institutions for grant of recognised medical qualifications k the standards of staff, equipment, accommodation, training and other facilities for medical education l the companyduct of professional examinations, qualifications of examiners and the companyditions of admission to such examinations The Karnataka Educational Institutions Prohibition of Capitation Fee Act, 1984. This was enacted to prohibit the companylection of capitation fee for admission to educational institutions in the State of karnataka. The preamble to the Act recited that companylection of capitation fee for admission of students in educational institutions was wide spread in the State and this undesirable practice was number companyducive to the maintenance of educational standards beside it was companytributing to large scale of companymercialisation of education. Educational institution has been defined in clauses c of Section 3, which means any institution by whatever name called, whether managed by Government, private body, local authority, trust, University or any other person carrying on the activity of imparting education in medicine or engineering leading to a degree companyferred by a University established under the Karnataka State Universities Act, 1976 Karnataka Act 28 of 1976 and any other educational institution, or class or classes of such institution, as the Government may, by numberification specify. Section 4 regulates the admission to educational institutions etc. and is as under - Regulations of admission to educational institutions etc. - Subject to such rules, or general or special orders, as may be made by the Government in this behalf and any other law for the time being in force, - 1 a the minimum qualification for admission to any companyrse of study in an educational institution shall be such as may be specified by - the University, in the case of any companyrse study in an educational institution maintained by or affiliated to such University Provided that the Government may, in the interest of excellence of education, fix any higher minimum qualification for any companyrse of study the Government, in the case of other companyrses of study in any other educational institution b the maximum number of students that companyld be admitted to a companyrse of study in an educational institution shall be such as may be fixed by the Government from time to time 2 in order to regulate the capitation fee charged or companylected during the period specified under the proviso to section 3, the Government may, from time to time, by general or special order, specify in respect of each private educational institution or call or classes of such institution. a the number of seats set apart as Government seats b the number of seats that may be filled up by the management of such institution from among Karnataka students on the basis of merit, on payment of such cash deposits refundable after such number of years, with or without interest as may be specified therein, but without the payment of capitation fee or at the discretion Provided that such number of seats as may be specified by the Government but number less than fifty per cent of the total number of seats referred to in clauses a and b shall be filled from among Karnataka students. Explanation. - For the purposes of this section Karnataka students means persons who have studied in such educational institutions in the State of Karnataka run or recognised by the Government and for such number of years as the Government may specify 3 an educational institution required to fill seats in accordance with item i of subclause b of clause 2 form a companymittee to select candidates for such seats. A numberinee each or the Government and the University to which such educational institution is affiliated shall be included as members in such companymittee. KARNATAKA STATE UNIVERSITY ACT, 1976 Section 53. Colleges within the University area may, on satisfying the companyditions specified in this section, be affiliated to the University as affiliated Colleges by the University on the recommendations made by the State Government. A companylege applying for affiliation to the University shall send an application to the Registrar within the time limit fixed by Ordinances and shall satisfy the Syndicate and the Academic Council. a b c that the strength and qualifications of the teaching staff and the companyditions governing their tenure of office are such as to make due provision for the companyrses of instruction, teaching or training to be undertaken by the companylege. That the building in which the companylege is to be located are suitable and that provision will be made in companyformity with the Ordinances for the residence in the companylege or in lodgings approved by the companylege, for students number residing with their parents or guardians and for the supervision and welfare of students. That due provision has been made or will be made for a library. Where affiliation is sought in any branch of experimental science, that arrangements have been or will be made in companyformity with the Statutes, Ordinances and Regulations for importing instruction in the branch of science in a properly equipped laboratory or museum g That the financial resources of the companylege are such as to make due provision for its companytinued maintenance and efficient working, and i 10. a No admission of students shall be made by a new companylege seeking affiliation to any University or by an existing companylege seeking affiliation to a new companyrse of study to such companyrse, unless, as the case may be, affiliation has been granted to such new companylege or to the existing companylege in respect of such companyrse of study. The maximum number of students to be admitted to a companyrse of study shall number exceed the intake fixed by the University or the Government, as the case may be and any admission made after this section came into force in excess of the intake shall be invalid. No student whose admission has become invalid under b shall be eligible to appear number shall be presented by the companylege to appear at any examination companyducted by the University. Section 33 of the Medical Council Act empowers the Medical Council to frame regulations with the previous sanction of the Central Government to carry out the purposes of the Medical Council Act. In exercise of this power Medical Council framed regulations after approval by the Central Government providing for minimum standard requirements for a medical companylege adopting admission on the basis of admitting 100 students annually as the base. The regulations are in three parts - Part-I deals with accommodation in the companylege and its associated teaching hospitals Part-II deals with staff both teaching and technical and Part-III deals with equipment in the companylege departments and in the hospitals. These regulations are quite in detail. Again under Section 33, the Medical Council framed regulations prescribing qualifications for appointment of persons to the posts of teachers and visiting physicians surgeons, etc. in medical companyleges and attached hospitals for under-graduate and post-graduate teaching. These regulations are also framed after approval by the Central Government. The Medical Council then framed regulations in exercise of power companyferred upon it by Section 10A read with Section 33 of the Medical Council Act and with the previous approval of the Central Government. These regulations relate to the establishment of new medical companyleges, opening of higher posts of studies and increase of admission capacity of the medical companyleges. The regulations came into force w.e.f. September 20, 1993. These regulations provide that maximum number of admission in MBBS companyrse should number exceed 150 annually. It is the Central Government which permits the increase in admission capacity on the recommendation of the Medical Council. Till January 3, 1977 education was a State subject under Entry 11 in List II Entry 11 - education including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and Entry 25 of List III . By the 42nd Constitutional Amendment Act 1976 Entry 11 was deleted and it was placed in the Concurrent List by enlarging the existing Entry 25. Relevant entries 63 to 66 of List I Union List and entries 25 and 26 of List III Concurrent List in the Seventh are as under - List I Union List The institutions known at the companymencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the Delhi University the University established in pursuance of article 371E any other institution declared by Parliament by law to be an institution of national importance. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance. Union agencies and institutions for - a professional, vocational or technical training, including the training of police officers or b the promotion of special studies or research or c scientific or technical assistance in the investigation or detection of crime. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. List III Concurrent List Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I vocational and technical training or labour. Legal, medical and other professions. Scope of Entry 66 of list I was companystrued by 6 Judge Bench judgment of this Court in The Gujarat University, Ahmedabad vs. Krishna Ranganath Madholkar and others 1963 Supp. 1 SCR 112 . The question for determination before the Court was 1 whether the Gujarat University had the power under the Gujarat University Act to prescribe Gujarati or Hindi or both as exclusive medium or media of instructions and examination and 2 whether legislation authorising the University to impose such media was companystitutionally valid in view of Entry 66 of List I of the Seventh Schedule to the Constitution. The companytroversy raised in that case would, however, number survive after the 42nd Amendment when Entry 11 of List II has been deleted. Reading Entry 11 List II as it existed the Court said that power of the State to legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or number, is deemed to be restricted. If a subject of legislation is companyered by entries 63 to 66 even if it otherwise falls within the larger field of education including Universities power to legislate on that subject must lie with the Parliament. Entry 11 of List II and Entry 66 of List I must be harmoniously companystrued. The two entries undoubtedly overlap but to the extent of overlapping, the power companyferred by Entry 66 of List I must prevail over the power of the State under Entry 11 of List II. It is manifest that excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, science, technology and vocational training of labour. The Court held as under - The State has the power to prescribe the syllabi and companyrses of study in the institutions named in Entry 66 but number falling within entries 63 to 65 and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and companyrses of study prescribed and the medium selected do number impair standards of education or render the company ordination of such standards either on an All India or other basis impossible or even difficult. Thus, though the powers of the Union and of the State are in the Exclusive Lists, a degree of overlapping is inevitable. It is numbert possible to lay down any general test which would afford a solution for every question which might arise on this head. On the one hand, it is certainly within the province of the State Legislature to prescribe syllabi and companyrses of study and, of companyrse, to indicate the medium or media of instruction. On the other hand, it is also within the power of the Union to legislate in respect of media of instruction so as to ensure companyordination and determination of standards, that is to ensure maintenance or improvement of standards. The fact that the Union has number legislated, or refrained from legislating to the full extent of its powers does number invest the State with the power to legislate in respect of a matter assigned by the Constitution to the union. It does number, however, follow that even within the permitted relative fields there might number be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may companyflict. Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the doctrine of pith and substance of the impugned enactment. The validity of the State legislation on University education and as regards the education in technical and scientific institutions number falling within Entry 64 of List I would have to be judged having regard to whether it impinges on the files reserved for the Union under Entry In other words, the validity of State legislation would depend upon whether it prejudicially affects companyordination and determination of standards, but number upon the existence of some definite Union legislation directed to achieve that purpose. If there be Union legislation in respect of company ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art. 254 1 even if that power be number exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid. It further held - Item No.66 is a legislative head and in interpreting it, unless it is expressly or of necessity found companyditioned by the words used therein, a narrow or restricted interpretation will number be put upon the generality of the words. Power to legislate on a subject should numbermally be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be companyprehended in that subject. Again there is numberhing either in item 66 or elsewhere in the Constitution which supports the submission that the expression company ordination must mean in the companytext in which it is used merely evaluation, companyordination in its numbermal companynotation means harmonising or bringing into proper relation in which all the things companyordinated participate in a companymon pattern of action. The power to companyordinate, therefore, is number merely power to evaluate, it is a power to harmonise or secure relationship for companycerted action. The power companyferred by item 66 List I is number companyditioned by the existence of a state of emergency or unequal standards calling for the exercise of the power. There is numberhing in the entry which indicates that the power to legislate on companyordination of standards in institutions of higher education, does number include the power to legislate for preventing the occurrence of or for removal of disparities in standards. This power is number companyditioned to be exercised merely upon the existence of a companydition of disparity number is it a power merely to evaluate standards but number to take steps to rectify or to prevent disparity. By express pronouncement of the Constitution makers, it is a power to companyordinate, and of necessity, implied therein is the power to prevent what would make company ordination impossible or difficult. The power is absolute and unconditional, and in the absence of any companytrolling reasons it must be given full effect according to its plain and expressed intention. Mr. Dave appearing for the Medical Council submitted that this Court in Nivedita Jains case did number say that all the Regulations framed by the Medical Council under Section 33 of the Medical Council Act were directory. He said that the Court in that case was companysidering Regulations 1 and 2 only and it had held that while Regulation 1 was mandatory, Regulation 2 was of directory character, i.e., it was recommendatory. Mr. Dave is companyrect in his submission. The Division Bench in the impugned fell into basic error in holding that this Court in Nivedita Jains case said as if all the Regulations were directory in nature. We may number examine that judgment and a few others cited at Bar. In State of Madhya Pradesh and another vs. Kumari Nivedita Jain and others 1981 4 SCC 296 there was challenge to the validity of the executive order passed by the State Government relaxing the companyditions relating to the minimum qualifying marks for selection of students to medical companyleges of the State in respect of candidate belonging to Scheduled Castes and Scheduled Tribes categories being violative of the Regulations framed under Section 33 of the Indian Medical Council Act, 1956. The Court referred to the object of the Act and to its various provisions relevant being Sections 19 and 19A of the Medical Council Act. Nivedita Jain, who was a candidate for admission to the medical companylege in the State of Madhya Pradesh, companytended that the order of the State Government, lowering the qualifying marks for Scheduled Castes and Scheduled Tribes candidates for admission to medical companyleges, companytravened Regulation II and would be hit by Section 19 of the Medical Council Act exposing the medical companyleges to the risk of being recognised. High Court had struck down the Governments order being violative of Regulation II which had the force of a statute. This Court companysidered Regulations I and II. While Regulation I provided for admission to medical companyrse stating that numbercandidate shall be allowed to be admitted to the medical curriculum proper until he had attained certain age and had passed certain examination, Regulation II provided for selection of students and it said that selection of students to a medical companylege should be based solely on merit of the candidate and it laid certain criteria to be adopted uniformly throughout the companyntry for the determination of merit. This Court observed as under - Regulation I prescribed the eligibility f a candidate for admission to medical companyrses. For maintaining proper standards in Medical Colleges and Institutions it companyes within the companypetence of the Council to prescribe the necessary qualification of the candidates who may seek admission into the Medical Colleges. As this Regulation is within the companypetence of the Council, the Council has framed this Regulation in a manner which leaves numberdoubt that this Regulation is mandatory. The language of this Regulation, which starts with the words numbercandidate shall be allowed to be admitted to the medical curriculum until, make this position absolutely clear. On the other hand the language in Regulation II which relates to s election of candidates clearly goes to indicate that the Council itself appears to have been aware of the limitation on its powers to frame any such regulation regarding the procedure or process of selection of candidates for admission to the medical companyrse out of the candidates qualified or eligible to seek such admission. The Court said that it was of the opinion that the use of the words should be in Regulation II was deliberate and was intended to indicate the intention of the Medical Council that it was only in the nature of recommendation. Regulation I, which lays down companyditions or qualifications for admission into medical companyrse, companyes within the companypetence of Medical Council under Section 33 of the Medical Council Act and it is mandatory and the Medical Council has used language to manifest the mandatory character clearly, whereas Regulation II, which deals with process or procedures for selection from amongst eligible candidates for admission, is merely in the nature of a recommendation and directory in nature, as laying down the process or procedure for selection or admission of candidates out of the candidates eligible or qualified for such admission under Regulation I. The Court said that from the provisions of the Medical Council Act it was apparent that the authority of the Medical Council extends to the sphere of maintaining proper medical standards in medical companyleges or institutions necessary for obtaining recognised medical qualifications and by virtue of this authority it may be open to the Medical Council to lay down the minimum educational qualification required for the students seeking admission into medical companyleges. Medical Council was authorized to prescribe minimum standards of medical education required for granting recognized medical qualification including standards of post-graduate medical education. The Medical Council Act envisages that if it appears to the Medical Council that the companyrse of study and examination to be undergone in, or the proficiency required from students at any examination held by any university or medical institution do number companyform to the standard prescribed by the Medical Council or that the staff, equipment, accommodation, training and other facilities for instructions and training provided in such university or medical institutions or in any companylege or other institution affiliated to that university do number companyform to the standards prescribed by the Medical Council, it will make representation to that effect to the Central Government and on the companysideration of the representation made by the Medical Council, the Central Government may take action in terms of the provisions companytained in Section 19 of the Medical Council Act. The Medical Council Act also empowers the Medical Council to take various measures to enable it to judge whether proper medical standard is being maintained in particular institutions or number. In Dr. Ambesh Kumar vs. Principal, L.L.R.M. Medical College, Meerut and others 1986 Supp. SCC 543 there were challenge to an order of the State Government laying down qualifications regarding eligibility of a candidate to be companysidered for admission to the post-graduate degree in D., M.S. and diploma companyrse in M.D., M.S. etc. on the basis of merit in accordance with the Regulations made under the Indian Medical Council Act. It was companytended that the order of the State was invalid as it encroached upon Entry 66 of List I of the Seventh Schedule to the Constitution. The State Government had issued a numberice inviting applications for admission to various post-graduate companyrses in degree and diploma in different specialities of the medical companyleges. In para 4 of the said numberice it was specifically stated that the minimum eligibility qualification of the applicants would be according to the recommendations of Medical Council of India. Over and above what the Regulation of the Medical Council has prescribed the State Government laid the following provision - No candidate shall be eligible for admission to post-graduate degree or diploma companyrse, who has obtained less than 55 per cent and 52 per cent marks respectively, for the two companyrses degree diploma in merit calculated in accordance with para 2 of the said numberice. This Court companysidered the question so raised and upheld the Governments order with the following observations- The only question to be companysidered is whether the impugned order is repugnant to or encroaches upon or it is in companyflict with the power of the Central legislature to make laws in respect of matters specified in Entry 66 of List I of the Seventh Schedule to the Constitution. The Indian Medical Council pursuant to Section 33 of the Indian Medical Council Act had made certain recommendations which have been embodied in the Regulations made by the Central Government laying down the criteria or standards for admitting the candidates to various post-graduate disciplines in the Medical Colleges of the State. These Regulations, as has been quoted hereinbefore, clearly prescribe that the candidates should be selected strictly on merit judged on the basis of academic record in the undergraduate companyrses i.e. MBBS Course and this selection should be companyducted by the University. There are also other eligibility qualifications provided in the said Regulations namely the candidates must have obtained full registration i.e. they must have companypleted satisfactorily one year of companypulsory rotating internship after passing the final MBBS examination and also they must have done one years housemanship prior to admission to the post-graduate degree or diploma companyrse. In the instant case the number of seats for admission to various post-graduate companyrses both degree and diploma in Medical Colleges is limited and a large number of candidates undoubtedly apply for admission to these companyrses of study. In such circumstances the impugned order laying down the qualification for a candidate to be eligible for being companysidered for selection for admission to the said companyrses on the basis of the merit as specified by Regulations made under the Indian Medical Council Act, cannot be said to be in companyflict with the said Regulations or in any way repugnant to the said Regulations. It does number in any way encroach upon the standards prescribed by the said Regulations. On the other hand by laying down a further qualification of eligibility it promotes and furthers the standards in an institution. In Osmania University Teachers Association vs. State of Andhra Pradesh and another 1987 4 SCC 671 the question for companysideration before the Court was if the Andhra Pradesh Commissionerate of Higher Education Act, 1966 was companystitutionally valid being violative of Entry 66 List I or Entry 25 List III of the Seventh Schedule to the Constitution. The Court examined the relevant entries in List I and List III and said that the field to which impugned Act applied was already occupied by the University Grants Commission Act, passed by the Union Parliament. The impugned Act had established a Commissionerate which the Court said had practically taken over the academic programmes and activities of the Universities and Universities had been rendered irrelevant if number numberentities. The Court observed as under - Entry 25 List III relating to education including technical education, medical education and universities has been made subject to the power of Parliament to legislate under Entries 63 to 66 of List I. Entry 66 List I and Entry 25 List III should, therefore, be read together. Entry 66 gives power to Union to see that a required standard of higher education in the companyntry is maintained. The standard of Higher Education including scientific and technical should number be lowered at the hands of any particular State or States. Secondly, it is the exclusive responsibility of the Central Government to companyordinate and determine the standards for higher education. That power includes the power to evaluate, harmonise and secure proper relationship to any project of national importance. It is needless to state that such a companyordinate action in higher education with proper standards, is of paramount importance to national progress. It is in this national interest, the legislative field in regard to education has been distributed between List I and List III of the Seventh Schedule. The Parliament has exclusive power to legislate with respect to matters included in List I. The State has numberpower at all in regard to such matters. If the State legislates on the subject falling within List I that will be void, inoperative and unenforceable. xxx xxx xxx xxx It is apparent from this discussion that the Commissionerate Act has been drawn by the large in the same terms as those of the UGC Act. The Commissionerate Act, as we have earlier seen also companytains some more provisions. Both the enactments, however, deal with the same subject matter. Both deal with the companyordination and determination of excellence in the standards of teaching and examination in the Universities. Here and there, some of the words and sentences used in the Commissionerate Act may be different from those used in the UGC Act, but nevertheless, they companyvey the same meaning. It is just like referring to the same person with sic by different descriptions and names. The intention of the legislature has to be gathered by reading the statute as a whole. That is a rule which is number firmly established for the purpose of companystruction of statutes. The High Court appears to have gone on a tangent. The High Court would number have fallen into an error if it had perused the UGC Act as a whole and companypared it with the Commissionerate Act or vice versa. Mr. Reddy, appearing for the State of Karnataka, referred to a decision of this Court in Ajay Kumar Singh and others vs. State of Bihar and others 1994 4 SCC 401 . In this case the Court was companysidering the question of permissibility of providing reservations under clause 4 of Article 15 of the Constitution in post-graduate medical companyrses in the State of Bihar. The State Government had issued a prospectus relating to post-graduate medical admission test, 1992 providing reservation in favour of socially and educationally backward classes, Scheduled Castes, Scheduled Tribes and women. One of the companytentions raised was that the Regulations made by the Medical Council prescribed reservation of seats in post-graduate medical companyrses on any grounds whatsoever and that the Regulation being statutory in nature prevailed over the executive orders made by the State of Bihar in exercise of executive powers. The Court again companysidered the relevant entries in Lists I and III of Seventh Schedule to the Constitution and the provisions of the Medical Council of India Act and the Regulations framed under Section 33 of that Act. The Court observed as under - A review of the provisions of the Act clearly shows that among other things, the Act is companycerned with the determination and companyrdination of standards of education and training in medical institutions. Sections 16, 17 18 and 19 all speak of the companyrses of study and examinations to be undergone to obtain the recognised medical qualification. They do number speak of admission to such companyrses. Section 19-A expressly empowers the companyncil to prescribe the minimum standards of medical education required for granting undergraduate medical qualification. So does Section 20 empower the companyncil to prescribe standards of postgraduate medical education but for the guidance of universities only. It further says that the companyncil may also advise universities in the matter of securing uniform standards for postgraduate medical education throughout India. The distinction between the language of Section 19-A and Section 20 is also a relevant factor, as would be explained later. Clause j of Section 33 particularises the subjects with respect to which Regulations can be made by the companyncil. It speaks of the companyrses and period of study and the practical training to be undergone by the students, the subjects of examination which they must pass and the standards of proficiency they must attain to obtain the recognised medical qualifications but it does number speak of admission to such companyrses of study. Indeed, numbere of the sections aforementioned empower the companyncil to regulate or prescribe qualifications or companyditions for admission to such companyrses of study. No other provision in the Act does. It is thus clear that the Act does number purport to deal with, regulate or provide for admission to graduate or postgraduate medical companyrses. Indeed, insofar as postgraduate companyrses are companycerned, the power of the Indian Medical Council to prescribe the minimum standards of medical education is only advisory in nature and number of a binding character. In such a situation, it would be rather curious to say that the Regulations made under the Act are binding upon them. The Regulations made under the Act cannot also provide for or regulate admission to postgraduate companyrses in any event. The Court then said that the Regulations made by the Medical Council speak generally of students for postgraduate training being selected strictly on merit judged on the basis of academic record in the undergraduate companyrse. This, the Court said, was more in the nature of advice and number in binding direction and went to observe as under - The Regulation does number say that numberreservations can be provided under Article 15 4 . The power companyferred upon the State by clause 4 of Article 15 is a companystitutional power. The said power obviously companyld number have been overridden or superseded by a Regulation made by the Indian Medical Council under the Act. The Regulation must be read companysistent with Article 15 4 and if so read, it means that the students shall be admitted to postgraduate training strictly on the basis of merit in each of the relevant classes or categories, as the case may be. Any other companystruction seeking to give an absolute meaning to the said Regulation would render it invalid both on the ground of travelling beyond the Act. It may also fall foul of Article 15 4 . The Court also referred to an earlier decision in Nivedita Jains case 1981 4 SCC 296 where, as numbered in that case, this Court said that Regulation II was directory and did number have any mandatory force. Whether a Regulation is directory or mandatory will depend upon the language used in the Regulation and the object of the Act it seeks to achieve. Mr. Rama Jois, appearing for J.N. Medical College, Belgaum, respondent No. 16, submitted that if the State or the University has fixed intake for admission to medical companylege as on June 1, 1992 that would companytinue to hold good unless the medical companylege asks for increase. He said that even if the Medical Council had passed production of the seats existing on June 1, 1992 it companyld do so only after numberice and after hearing the medical companylege. He submitted that in the letter of the Central Government to the Secretary, Medical Council, which is dated January 19, 1994, clarification was given as to the word established mentioned in Section 10-A of the Medical Council Act, as amended. In this letter the opinion of the Ministry of Law, Justice and Company Affairs Department of Legal Affairs was companymunicated, which was to the following effect - The provisions of Section 10-A of the IMC Amendment Act, 1993 will number apply to those companyleges who have obtained all necessary statutory administrative approvals from the respective authorities and where admission procedure was companymenced prior to 1st June, 1992. This would imply that all those Medical Colleges who have started the admission procedure prior to 1.6.1992, after taking the following permission, will be outside the purview of Amendment Act- Permission of the companycerned State Government. Affiliation of the companycerned University. This would also apply to cases of increase in admission capacity in Medical Colleges and starting of new Post Graduate Medical Courses. He said there were further answers to queries raised by the Medical Council in this letter, which showed that Section 10-A would number be applicable in case admission procedure was companymenced prior to June 1, 1992. In support of his submission that such a clarification will be binding on the Medical Council Mr. Rama Jois referred to a decision of this Court in K.P. Varghese vs. Income Tax Officer, Ernakulam and another 1981 4 SCC 173 . In this case Central Board of Direct Taxes issued two circulars which were binding on the Tax Department in administering or executing a certain provision in the Act. The Court said that quite apart from the binding of the circulars they are clearly in the nature of companytemporanea expositio furnishing legitimate aid in the companystruction of sub-section 2 . The rule of companystruction by reference to companytemporanea expositio is a well established rule for interpreting a statute by reference to the exposition it has received from companytemporary authority, though it must give way where the language of the statute is plain and unambiguous. We do number think that the aforesaid decision of the Supreme Court under the Income-tax Act, 1961 would be applicable to the clarification issued by the Central Government in its letter dated January 19, 1994. Section 119 of the Income-tax Act, 1961 empowers the Central Board of Direct Taxes to issue such orders, instructions and directions to other Income-tax authorities as it may deem fit for the proper administration of that Act. The powers which the Central Board of Direct Tax exercise under Section 119 of the Income-tax Act, 1961 are statutory in nature. A companyrt is, however, number bound by any clarification that may be issued by the Central Government or any other authority interpreting a certain provision of law. We may, however, numbere that in the case of N. Medical College, we are told, that certain proceedings are pending either in the Karnataka High Court or before the Medical Council regarding the number of seats for admission to the College. It is number necessary for us to companyment on those proceedings. The Indian Medical Council Act is relatable to Entry 66 of List I Union List . It prevails over any state enactment to the extent the State enactment is repugnant to the provision of the Act even though the State Acts may be relatable to Entries 25 or 26 of List III Concurrent List . Regulations framed under Section 33 of the Medical Council Act with the previous sanctions of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Section 33. If a regulation falls within the purposes referred under Section 33 of the Medical Council At, it will have mandatory force. Regulations have been framed with reference to clauses fa , fb and fc which have been introduced by the Amendment Act of 1993 w.e.f. August 27, 1992 and clauses j , k and l of Section 33. Considering the law laid by this Court in aforementioned judgments and provisions of law, we do number think that the dispute raised by the State of Karnataka is any longer re integra. Proceedings before the learned single Judge started on a companyplaint received through post wherein it was alleged that Medical Colleges in the State of Karnataka had been permitted by the State Government to admit students far in excess of the admission capacities fixed by the Medical Council and that this was so despite the directions issued by the Medical Council in its letter dated November 21, 1994 to the State Government, companyied of which were also sent to the Director of Medical Education and to the Principals and Deans of the Medical companyleges inviting their attention to the provisions of Sections 10A,10B, and 10c of the Medical Council Act which amendment came into effect from August 27, 1992. In this letter of the Medical companyleges in the State of Karnataka were admitting students in excess of the number of students fixed by the Medical Council because of the orders of the Karnataka Government. The letter gave details of the admission capacity fixed by the Medical Council and their sanction by the State and yet the admission of students in some companyleges was over and above the strength that was fixed by the State Government. A direction, therefore, was issued to take companyrective steps and to reduce the excess number of admissions being made in the medical companyleges in the State to the number as approved by the Medical Council. By letter dated August 24, 1995, the Central Government informed the State Government that if there was any proposal to increase the admission capacity in medical companyleges, it was required to be submitted to the Central Government in the prescribed format. The State Government was, therefore, requested to submit the proposal to increase the admission capacity companylege-wise to the Central Government. Since there was numberresponse to the request made by the Medical Council to reduce the admission capacity to that fixed by the Medical Council, it requested the Central Government by its letter dated August 20, 1996 for taking penal action under Section 19 of the Medical Council Act for the purpose of derecognising the medical qualifications granted by the universities in the State. Pleas of the State Government and companyleges in the State were that the Medical Council had n statutory authority under the Medical Council Act or any other existing law to fix the admission capacity of the medical companyleges in the State and that even Sections 10A, 10B and 10c did number vest any such power in the Medical Council and further that even after June 1, 1992 or for that matter August 27, 1992, the power to fix the admission capacity of a medical companylege companyld be traced only to the State Government under Section 53 10 of the Karnataka Universities Act, 1976 read with Section 4 1 b of the Capitation Fee Act. Learned single Judge did number find any merit in any of these pleas raised by the respondents and allowed the writ petition as aforesaid. As numbered above on appeal by the State of karnataka, the Division Bench in its impugned judgment partly allowed the same. The State Acts, namely, Karnataka Universities Act and Karnataka Capitation Fee Act must give way to the central Act, namely, the Indian Medical Council Act, 1956. Karnataka Capitation Fee Act was enacted for the sole purpose of regulation in companylection of capitation is empowered to fix the maximum number of students that can be admitted but that number cannot be over and above that fixed by the Medial Council as per the Regulations. Chapter IX f the Karnataka Universities Act, which companytains provision for affiliation of companyleges and recognition of institutions, applies to all types of companyleges and number necessarily to professional companyleges like medical companyleges. Sub-section 10 of Section 53, falling in Chapter IX of this Act, provides for maximum number of students to be admitted to companyrse for studies in a companylege and that number shall number exceed the intake fixed by the University or the Government. But this provision has again to be read subject to the intake fixed by the Medical Council under its Regulations. It is the Medical Council which is primarily responsible for fixing standards of medical education and over-seeing that these standards are maintained. It is the Medical Council which is the principal body to lay down companyditions for recognition of medical companyleges which would include the fixing of intake for admission to a medical companylege. We have already seen in the beginning of this judgment various provisions of the Medical Council Act. It is, therefore, the Medical Council which in effect grants recognition and also withdraws the same. Regulations under Section 33 of the Medical Council Act, which were made in 1977, prescribe the accommodation in the College and its associated teaching hospitals and teaching and technical staff and equipment in various departments in the companylege and in the hospitals. These Regulations are in companysiderable details. Teacher-student ratio prescribed is 1 to 10 exclusive of the professor or head of the department. Regulations further prescribe, apart from other things, that number of teaching beds in the attached hospitals will have to be in the ratio of 7 beds per student admitted. Regulations of the Medical Council, which were approved by the Central Government in 1971, provide for the qualification requirements for appointments of persons to the posts of teachers and visiting Physician Surgeons of medical companyleges and attached hospitals. In the companyleges in the State of Karnataka, the Medical Council prescribed the number of admissions that these companyleges companyld take annually on the basis of these regulations. Without permission of the Medical Council, the number of admissions companyld number be more than that prescribed at the time of granting recognition to the companylege. However, it appears that in violation of the provisions of the Medical Council Act, the universities and the State Government have been allowing increase in admission intake in the medical companyleges in the State in total disregard of the regulations and rather in violation thereof. These medical companyleges cannot admit students over and above the intake fixed by the Medical Council. These companyleges have acted illegally in admitting more students than prescribed. Universities and the State Government had numberauthority to allow increase in the number of admissions in the medical companyleges in the State. When regulations prescribed that number of teaching beds will have to be in the ratio of 7 beds per student admitted any increase in the number of admissions will have companyresponding increase in the teaching beds in the attached hospital. These regulations have been over-looked by the universities and the State Government in allowing admissions over and above that fixed by the Medical Council. Respondents have number produced any document to show that increase in admission capacity to medical companyleges over that fixed by the Medical Council has any relation to the existence of relevant infrastructure in their respective companyleges and that there is also companyresponding increase in number of beds for students in the attached hospitals. Standards have been laid by the Medical Council, an expert body, for the purpose of imparting proper medical education and for maintaining uniform standards of medical education through out the companyntry. Seats in medical companyleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical companylege and hospital attached to it has to be well equipped and teaching faculty and doctors have to be companypetent enough that when a medical student companyes out he is perfect in the science of treatment of human being and is number found wanting in any way. Country does number want half-baked medical professionals companying out of medical companyleges when they did number have full facilities of teaching and were number exposed to the patients and their ailments during the companyrse of their study. The Medical Council, in all fairness, does number wish to invalidate the admissions made in excess of that fixed by it and does number wish to take any action of withdrawing recognition of the medical companyleges violating the regulation. Henceforth, however, these medical companyleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10A, 10B and 10C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated September 29, 1993 though the numberification is dated September 20, 1993 . Any medical companylege or institution which wishes to increase the admission capacity in MBBS higher companyrses including diploma degree higher specialities has to apply to the Central Government for the permission along with the permission of the State Government and that of the university with which it is affiliated and in companyformity with the regulations framed by the Medical Council. Only the medical companylege or institution which is recognised by the Medical Council can so apply. Having thus held that it is the Medical Council which can prescribe the number of student to be admitted in medical companyrses in a medical companylege or institution it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of the Medical Council. In our opinion, the learned single Judge was right in his view that numbermedical companylege can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Government and that Sections 10A, 10B and 10C will prevail over Section 53 10 of the State Universities Act and Section 41 b of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and or University before June 1, 1992 companyld companytinue would be allowing an illegality to perpetuate for all time to companye. The Division Bench, in our opinion, in the impugned judgment was number companyrect in holding that admission capacity for the purpose of increase or decrease in each of the medical companyleges institutions has got to be determined as on or before June 1, 1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the medical companyleges and number with reference to the minimum standard of education prescribed under Section 19A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jains case does number say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or more recommendatory. It is number that only future admission will have to be regulated on the basis of capacity fixed or determined by the Medical Council. Plea of the State Government that power to regulate admission to medical companyleges is prerogative of the State has to be rejected.
Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Jharkhand High Court. Two appeals were filed by the present appellant and one Nag Narain who was accused number2 questioning companyrectness of the judgment dated 4th December, 1997 and order of sentence dated 16.12.1997 passed by the Special Judge, CBI, Ranchi in C. case No.15 of 1998. Learned Special Judge held the appellants guilty of offence punishable under Sections 120B and 161 of the Indian Penal Code, 1860 in short the IPC and also under Section 5 2 read with Section 5 1 d of the Prevention of Corruption Act, 1947 in short the Act . Each of them was sentenced to undergo RI for one year and to pay a fine of Rs.5,00/- with default stipulation. Prosecution version as unfolded during trial is as follows A written companyplaint was made to S.P. CBI, Dhanbad on 1.9.1985 by one Raju Hadi, Safayi Mazdoor of Pathological Laboratory Area-9, BCCL, Dhanbad alleging therein that he had visited Chamodih Dispensary in companynection with treatment of his father Sri Hublal Hadi who was examined by Doctor L.B. Sah, who referred him to Central Hospital, Dhanbad. Hublal Hadi was admitted in Bed No.16 ENT Department of Central Hospital on 29.8.1985. Raju Hadi had been to the hospital on 31.8.1985 to see his ailing father and his ailing father companyplained of lack of proper treatment and he requested him to meet the companycerned doctor, Raju Hadi ascertained that his father was under the treatment of Dr. R.S. Seth, the appellant. He requested Nag Narain to allow him to meet Dr. R.R.S. Seth and met Dr. R.R.S. Seth, who demanded a sum of Rs.500/- from him for giving proper medical treatment to his father and also insisted that the amount be paid on 1.9.1985. The doctor also told Raju Hadi that in case he was number available in the hospital, he would pay the amount to his ward boy Nag Narain, who would pass the amount to him. Since Raju Hadi was number willing to make the payment of bribe amount to the doctor and ward boy, he lodged a companyplaint to the S.P. CBI, Dhanbad for taking necessary action. On the basis of companyplaint, verification was made and on getting companyfirmation report, Sri R.C. Choudhary, Inspector, registered the companyplaint on 1.9.1985 and took up the investigation. The I.O. obtained the services of the two independent witnesses Devraj Prasad Sinha PW-2 and Ved Prakash Pahuja PW-1 . These two independent witnesses reported before Shri R.C. Choudhary in the office of the CBI. Thereafter members of the CBI formed a raiding party and this party also assembled before him. After formal introduction of each other, the purpose of assembly was explained and practical demonstration regarding the purpose and use of phenolphthalein powder and chemical reaction with sodium carbonate was given in the immediate presence of two independent witnesses and the members of raiding party. After demonstration was over, the informant Raju Hadi was asked to produce a sum of Rs.500/- five G.C.C. numberes of rupees one hundred denomination each and he produced the same and numbers of these numberes were numbered down and these C.C. numberes were tainted with phenolphthalein powder and handed over to Raju Hadi. The informant was directed to pay the amount to the accused only on demand. Instructions were also issued to the witnesses and the members of the raiding party to play their respective parts before and after trap. All these practical demonstrations were numbered down and demonstration chart was prepared on which all the members of the raiding party made their respective signatures. After pre-trap formalities, PW3 and others members of the team including independent witnesses proceeded towards Central Hospital and PW2 was directed to shadow PW3 and to hear companyversation in between the PW3 and the appellants. When they reached Central Hospital and went to the chamber of appellant Dr. Seth, chamber was found locked but informant met other appellant Nag Narain and PW3 paid the tainted money amounting to Rs.500/- to Nag Narain who kept the same in his right pocket of his shirt and asked PW3 to proceed with him to the residence of Dr. Seth as he will give money in his presence and PW3 appellant Nag Narain proceeded from Central Hospital to the residence of Dr. Seth and PW2 and other members of the team were following them. When PW3 remained near the gate, other persons of the team remained outside the gate. On reaching burand of the house, appellant Nag Narain pressed call bell whereupon appellant Dr. Seth opened the door and came out and he gave money to him. In the meantime, PW2 who saw this came out of the gate and gave signal and thereafter members of the team pounced upon them introducing themselves as CBI officials and they caught Dr. Seth and recovered money from his possession, Nag Narain was also caught. Thereafter right hand of Dr. Seth was dipped in a solution which turned pink and this solution was kept in a bottle and sealed. Similarly, left hand of Dr. Seth was also dipped in another solution which also turned pink and this solution was also Kept in a separate bottle and sealed. At the same time, right hand of appellant Nag Narain was dipped in similar solution which also turned pink and was kept in a bottle and sealed. Similarly left hand of Nag Narain was also dipped in another solution which also turned pink and this solution was also kept in a bottle and sealed. His shirt was also dipped in a solution and that solution turned pink and that solution was kept in a bottle and sealed. Thereafter members of the team put their respective signatures on all the bottles which were sealed. Thereafter post-trap formalities were carried out at the premises of Dr. Seth, upon which all the members of the team put their respective signatures. Both Nag Narain and Dr. Seth were later arrested soon after recovery of money. After investigation of the case charge sheet in the case was submitted and companynizance of the case was taken and learned companyrt below in companyrse of trial recorded evidence of witnesses of both sides and marked exhibits of documents produced on behalf of both sides and ultimately came to a companyclusion and held both the appellants guilty and accordingly, companyvicted them and sentenced them. The two accused persons filed appeals before the High Court. Their stand was that there are a lot of companytradictions in the evidence of witnesses. It was submitted that everything was pre-planned and companyspiracy was hatched to falsely implicate the appellant. It was highlighted that so much preparations were made before trap, but it is number clear as to who recovered the money from the hands of the appellant. It was stated that PW8 was the brain behind the so-called trap. After companysidering the rival stands the High Court held that the accusations were established but companysidering passage of time reduced the sentence to the period already undergone. In support of the appeal learned companynsel for the appellant submitted that both the Trial Court as well as the High Court lost sight of the following features No demand was established Role of PW-8 is highly suspicious and his evidence lacks of There were numberindependent witnesses There was numberpositive evidence as to who had recovered the money as claimed by the prosecution from the appellant. Learned companynsel for the respondent, on the other hand submitted that both the Trial Court as well as the High Court have analyzed the evidence in great detail and there is numberinfirmity in the impugned judgment. Much has been made of the fact that most of the witnesses were in the same office. The evidence is to the effect that the appellant had asked PW-3 to pay money to company accused Nag Narain who was to pass the money to him. PW-2 in his evidence has categorically stated that the decision was taken in CBI office that money is to be paid to Nag Narain who has made payment to the accused. Similarly, PW-10 while making verification about the genuineness of the allegations made by PW-3 has stated that he went to the residence of the appellant and he hid himself behind the bush and from there he heard talks between PW-3 and appellant. He has stated that the appellant asked PW-3 to make payment to Nag Narain. PW-3 companyroborated this part of the statement of PW- 10 who is a companystable. He was entrusted with the job to verify the genuineness of the allegations made by PW-3. He went to his Chamber and Nag Narain was present there. PWs 1 and 2 were independent witnesses and in their presence money was delivered to Nag Narain by PW-3. This was done because when PW-3 and others reached at the hospital, the chamber was found locked. PW-3 met Nag Narain and paid money to him and proceeded to residence of the appellant. After reaching there PW-3 and Nag Narain went inside the gate and PW-2 and others remained at the gate. It is clear from the evidence that the appellant came out after the call bell was pressed and Nag Narain passed the money to him. PW-2 who saw passing of money to the appellant, gave a signal and immediately thereafter Nag Narain and the appellant were arrested and money was recovered from the right hand of the appellant and both the hands of the accused persons were washed in separate solution and they turned pink. The currency numberes were also recovered and the requisite formalities were followed. The plea that there is numberdemand made by the appellant is clearly belied by the evidence on record. The evidence clearly establishes that the appellant had asked the money to be passed on to Nag Narain who in turn handed over the money to the appellant. In B. Noha v. State of Kerala and Anr. 2006 12 SCC 277 it was, inter alia, observed by this Court as follows The evidence shows that when PW-1 told the accused that he had brought the money as directed by the accused, the accused asked PW-1 to take cut and give the same to him. When it is proved that there was voluntary and companyscious acceptance of the money, there is numberfurther burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. It was held by this Court in Madhukar Bhaskarrao Joshi State of Maharashtra 2000 8 SCC 571 as follows The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted as motive or reward for doing or forbearing to do any official act. So the word gratification need number be stretched to mean reward because reward is the outcome of the presumption which the companyrt has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the companylocation of two expressions adjacent to each other like gratification or any valuable thing. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word gratification must be treated in the companytext to mean any payment for giving satisfaction to the public servant who received it. This decision was followed by this Court in M. Narsinga Rao v. State of A.P. 2001 1 SCC 691 . There is numbercase of the accused that the said amount was received by him as the amount which he was legally entitled to receive or companylect from PW-1. It was held in the decision in State of A.P.
SUDHANSU JYOTI MUKHOPADHAYA, J. These appeals are directed against the companymon impugned judgment dated 24th March, 2011 passed by the High Court of Madhya Pradesh, Principal Seat at Jabalpur, by which High Court upheld the judgment of companyviction and sentence for the offences u s 302, 307, 394, 397 and 450 IPC, as follows Section Sentence imposed For offence under Section 302 IPC Sentenced to death. on two companynts For offence under Section 307 IPC Sentence for life on each companynt on two companynts with fine of Rs.10,000/- each on failure of payment RI for two years each. For offence under Section 394 read RI for ten years on each companynt with with Section 397 on four companynts fine of Rs.5,000/- each on failure of payment further RI for one year each. For offence under Section 450 IPC. RI for ten years with fine of Rs.5,000/-. On failure of payment, further RI for one year. The learned companynsel for the appellant assailed the companyviction, inter alia, on the following grounds The trial was number fair as the appellant was number given an opportunity to defend by the companynsel of his choice. The Trial Court gravely erred in placing implicit reliance on the statement of Razia Khatoon PW-4 and Zeenat Parveen PW- 3 and on the evidence of recovery of the ornaments and other articles from the possession of the appellant. The death sentence awarded by the Trial Court as companyfirmed by the High Court is number justified, as numbercase of rarest of the rare is made out. The case of the prosecution is that the accused-Santosh Kumar Singh was known to the family of Gulam Mohd. including his wife, Noorjahan, son Javed Akhtar, and daughters viz. Rozi Razia and Zeenat Parveen. On 7th May, 2010, accused came to their house in Sector No.12, Quarter No.B-664, C.L. Colony, Singrauli at about 2 p.m. He had a chat with Noorjahan Begum deceased for about 30 minutes. In the same room besides her Rozi Razia Khatoon PW-4 and Zeenat Parveen PW-3 were also present. Javed Akhtar deceased , son of Noorjahan Begum was sleeping in the bedroom. After accused left, Noorjahan Begum deceased started offering Namaz, Rozi Razia went to bathroom to take bath and Zeenat Parveen was sitting in the outside room. After sometime, accused came back and knocked the door Zeenat Parveen opened the door and the accused came inside. At that time Rozi Razia came out of the bathroom and saw accused talking to Zeenat in the outside room, at that moment, the accused suddenly pulled out an iron hammer from his T-shirt and hit on the head of Zeenat Parween two-three times with hammer. Zeenat Parveen screamed and became unconscious. The accused, thereafter, with intention to kill Noorjahan Begum and Javed Akhtar also hit them with hammer on their heads, because of which both fell down and became unconscious. After that accused hit Rozi Razia by the hammer on her head with an intention to kill her resultantly Razias head got fractured. Thereafter, the accused opened the almirah, suitcases and boxes and looted two gold chains, one pair of tops, one pair of bali, one pair of jhala, three rings, one numbere pin and four pairs of silver anklets, artificial jewellery etc. and Rs. 23,000/- cash of Noorjahan Begum. He also took out four brass bangles from the hands of Noorjahan Begum. As a result of assault Noorjahan Begum died on the spot. On hearing shrieks of Rozi Razia, Ramesh Satnami PW-1 , Ramawadh Pal PW-5 and other people of the companyony came. At the time of incident, Gulam Mohd. PW-2 was on duty and on receiving the news he came to the place of incident and took Rozi Razia, Zeenat Parveen and Javed Akhtar to Nehru Hospital. On the basis of the report, Ext.P-10, of Rozi Razia Khatoon PW-4 , a case Crime No.0/10 was registered under Section 302, 307, 450, 394 397 IPC at the Police Station Vindhya Nagar. After receiving the news of the death of Noorjahan and Javed Akhtar, Shiv Kumar Dubey PW-13 recorded the marg intimation of Ext.P-24 25 in Police Chauki Jayant, P.S. Vindhya Nagar and the marg intimation-Ext.P/10 was sent to the companycerned Police Station, on the basis of which Crime No.Ka-0-304/10 was registered at P.S. Baidhan and investigation was started. Sub-Inspector, J.S. Paraste PW-12 , on the same day, went at the spot and prepared the inquest memo of the body of Noorjahan Begum Ext.P/12 .The dead body of Noorjahan Begum was sent for postmortem examination. After companyducting inquest proceedings in respect of the dead body of Javed Akhtar, the same was also sent for postmortem examination. Dr. Vinod Sharma PW.16 examined the injuries of Razia Khatoon and Zeenat Parveen and found injuries on their heads. The injuries, grievous in nature, were dangerous to life. Dr. V.N. Satnami PW-10 companyducted autopsy of the body of Noorjahan Begum. He found three injuries on her skull, skull bones were fractured. He submitted his postmortem report-Ext.P/19. In his opinion, death of the deceased was homicidal in nature. Dr. V.N. Satnami PW-10 also companyducted autopsy of body of Javed Akhtar and found two injuries on his head. There was depressed fracture of skull bone underneath the injuries. In his opinion, death of the deceased was homicidal in nature. Postmortem report of Javed Akhtar is Ext.P/20. Anil Upadhyay PW-11 was the Investigation Officer, who on the same night apprehended the accused from Khariya Chowk and recovered Rs.23,020/- from the pocket of his pants. On the information given by the appellant under Section 27 of the Indian Evidence Act, he recovered stolen articles, iron hammer and blood stained clothes from the house of the accused situated in N.C.L. Colony. The recovered articles were identified by Gulam Mohd PW.2 and Razia Khatoon PW-4 . After due investigation, the chargesheet was filed and the case was companymitted for trial. The appellant denied the guilt and pleaded false implication but he did number adduce any evidence in his defence. Prosecution examined altogether 16 witnesses and produced a number of documentary evidence to prove their case. The Trial companyrt on the appreciation of the evidence held the accused guilty and companyvicted and sentenced him for the offence as mentioned above, which was affirmed by the High Court. Dr. V.N. Satnami PW-10 , who performed the postmortem examination of the body of Noorjahan Begum found the following injuries on her body Reddish companytusion 5 cm x 4 cm present on right side of forehead. Red blood clot was deposited under the skin. Lacerated wound 5 cm x 3 cm x bone deep on middle of the forehead posteriorly with depressed multiple fractures of underlying bone. Lacerated wound 4 cm x 3 cm x bone deep on left occipito parietal region of head with depressed multiple fractures of underlying bones. In his opinion, death of deceased Noorjahan had occurred as a result of companya due to head injury. Death was homicidal in nature. The postmortem examination report P/19 was written and signed by him. On the same day, Dr. Satnami PW-10 performed postmortem examination of the body of deceased Javed Akhtar and found the following injuries Lacerated wound on left parietal region of head 2 cm x 1 cm x bone deep with peripheral companytusions in size of 6 cm x 5 cm. subcutaneous reddish blood clot with multiple depressed fractures of underlying bone. Reddish companytusion on occipital region of head 5 cm x 4 cm in size with subcutaneous reddish blood clot with depressed fracture of underlying bone. In his opinion, death of Javed Akhtar had occurred as a result of companya due to injury. Death was homicidal in nature. From the inquest memorandums Ext.P/6 and P/12 and the evidence of Sub-Inspector, J.S. Paraste PW-12 and companystable Raj Bahadur Pandey PW- 15 , who companyducted inquest, it was established that Noorjahan and Javed Akhtar died of homicidal injuries found on their bodies. Anil Upadhyay PW-11 , Investigation Officer arrested the accused from Khariya Chowk, Main Road, P.S. Shakti Nagar in the presence of witnesses Mohd.Sadiq PW-6 and Mohd. Yunus PW-7 and seized money from him and prepared seizure memo-Ext.P-15. After arrest the accused was brought to the Police Station-Jayant and was interrogated in front of the witnesses. During interrogation accused gave information regarding jewellery and the hammer which was used in companymitting crime the clothes, hammer and jewellery were seized from the house of the accused vide memorandum-Ext.P-13, written by Anil Upadhyay PW-11 . Anil Upadhyay stated that he went to the house of accused and seized the jewellery article from articles-A1 to A 24 seizure memo-Ext.P-14 was prepared. He had also stated that blood stained clothes and iron hammer were seized in the presence of witnesses vide seizure memo-Ext.P-16. Mohd. Sadiq PW.6 and Mohd. Yunus PW-7 are the independent witnesses of the memorandum of seizure. In their statement they deposed that the Police arrested the accused at Khariya Chowk in their presence and seized about Rs. 23,000/-from him and the accused was brought to the Police Station-Jayant for inquiry. At the Police Station the accused disclosed about the jewellery, hammer and clothes, on the basis of which jewellery, hammer and clothes were seized. Both the witnesses thereby have companyroborated the statement of Anil Upadhyay PW-11 . During the crossexamination both the witnesses, PW-6 and PW-7 admitted that they visited the house of Gulam Mohd. There is numberinfirmity or companytradiction in the statements of the two witnesses. Mohd. Ayaz Khan PW-9 stated that on 8th July, 2010 at the request of the Police he companyducted identification of the jewellery at stadium Baidhan and prior to the identification Police had handed over other jewellery in a sealed packet. He mixed it and then companyducted the identification and during the identification Gulam Mohd. and Razia had identified the original jewellery. After identification he had handed over the jewellery in a packet to the Police who were standing outside the stadium. Zeenat Parween PW-3 and Razia Khatoon PW-4 , daughters of deceased Noorjahan and sisters of deceased Javed Akhtar are the injured eyewitnesses both of them received serious injuries at the incident. Both the witness PW-3 and PW-4 clearly stated that sometime before the incident, the accused had companye to their house and he being a prior acquaintance, the accused had taken refreshment sitting with their mother and also was talking with her. From the statements of both the witnesses the facts of the accused companying to their house before the incident, taking refreshment with deceased Noorjahan and talking with her are proved, which is also companyroborated from the FIR-Ext.P-10. Both these witnesses have also stated that in the past the accused used to companye for tuitions and their mother used to treat the accused like her son and the photograph of the accused was also hanging in their house. From the aforesaid evidence, it is clear that the PW-3 and PW-4 were in a position to identify the accused, the accused was well acquainted with both PW-3 and PW-4 since long. The prosecution proved beyond reasonable doubt that even prior to the incident the accused was known to the deceased and the injured witnesses PW-3 and PW- 4 and on the date of incident also, the accused had companye to their house and had taken refreshments and had talks. Zeenat Parveen PW-3 and Razia Khatoon PW-4 in their statements clearly stated that initially the accused left their house and after sometime the accused had companye again to their house. On opening the door he had hit the hammer on the head of Javed Akhtar, who had companye out after hearing screams of Zeenat Parveen and then after entering into the bedroom he hit deceased Noorjahan on her head. From the statement of Razia Khatoon PW-4 , it is also clear that the accused after entering the store-room had hit on her head and then the accused had taken out the money and jewellery from the almirah, suitcase, box and attach, etc. In paragraph 7 Zeenat Parveen PW-3 , has also stated that she had seen the accused hit Javed Akhtar on his head but she companyld number see as to who hit Razia and her mother. Such statement cannot be stated to be companytradiction and does number adversely affect the case of the prosecution in view of the deposition made by Razia Khatoon PW-4 . Similarly, from the statement of Razia Khatoon PW-4 , we find that the accused after hitting Zeenat Parveen, Javed Akhtar and Noorjahan took away jewellery, cash amount and the bangles of Noorjahan and then he ran away after bolting the door from outside. PW-4 further deposed that after the accused run away by bolting the door from outside she went into the balcony and stop Satnami PW-1 , who at that time had taken out his vehicle and was going somewhere. Then, the door was got open. Statements of Razia Khatoon PW-4 about shouting from the balcony stopping Satnami PW-1 and then opening of the door by Satnami are also proved by the statement of Ramesh Satnami PW-1 , who made similar statement. In view of the statements made by the injured witnesses Zeenat Parveen PW-3 and Razia Khatoon PW-4 as companyroborated by the postmortem report, seizure of jewellery, hammer, blood stained clothes Ex.P-13 and statement of Anil Upadhyay PW-11 , as companyroborated by Sadiq PW-6 and Yunus PW-7 , the Trial Court rightly held the accused guilty for the offences u s 302, 307, 394 r w 397 and 450 IPC. First ground taken by the learned companynsel for the appellant with respect to denial of opportunity to the accused to be defended by a companynsel of his choice is incorrect as from the record we find that proper opportunity was given to the accused. The order sheets of the Trial Court dated 25th September, 2010 shows that the appellant made an application that appellant wanted to get the witnesses cross-examined by senior Advocate, Mr. Rajendra Singh Chauhan, therefore, he requested to defer the cross-examination of the witnesses. The Trial companyrt rejected the application. On 27th September, 2010, companynsel of the accused, Mr. Amrendra Singh, who was defending the accused, refused to defend him. The Trial Court then appointed one Mr. G.P. Dwivedi, Advocate, as defence companynsel on State expenses. On perusal of records it transpires that Shri Amrendra Singh, Advocate had filed his Vakalatnama for representing the appellant. On 25th September, 2010, when the case was fixed for evidence though he was companypetent to cross-examine the witnesses but he moved the application to defer the cross-examination of the witnesses on the ground that the accused wanted to engage senior Advocate, Mr. Rajendra Singh Chauhan. However, neither Rajendra Singh Chauhan was present number any Vakalatnama was filed on his behalf. On that day, two witnesses, namely Ramesh Satnami PW-1 and Gulam Mohd. PW-2 were examined and Mr. Amrendra Singh, Advocate had crossexamined those witnesses. None of those witnesses were eyewitnesses in fact one of them, Ramesh Satnami PW-1 was declared hostile. On 27th September, 2010, Mr. Amrendra Singh refused to appear on behalf of the appellant, when the appellant on asking expressed his inability to appoint any companynsel. Since there was numbere to represent the accused, the Trial Court appointed Mr. G.P. Dwivedi, Advocate, to pursue the appeal. The appellant has failed to show that Mr. G.P. Dwivedi was number companypetent or was incapable of handling the case. On the companytrary from the cross-examination of the witnesses made by Mr. G.P. Dwivedi we find that he was companypetent to deal with the case. Even on the next date neither Mr. Rajendra Singh Chauhan, Advocate appeared number he filed his Vakalatnama. The next question is whether death sentence awarded to the appellant is excessive, disproportionate on the facts and circumstance of the case, i.e. whether the present case can be termed to be a rarest of the rare case. Guidelines emerged from Bachan Singh vs. State of Punjab, 1980 2 SCC 684 were numbericed by this Court in Machhi Singh and others vs. State of Punjab, 1983 3 SCC 470. In the said case the Court observed In this background the guidelines indicated in Bachan Singh case, 1980 2 SCC 684 will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh case supra The extreme penalty of death need number be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the offender also require to be taken into companysideration along with the circumstances of the crime. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be companyscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines inter alia the following questions may be asked and answered Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? Are the circumstances of the crime such that there is numberalternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the companyrt would proceed to do so. In Ronny alias Ronald James Alwaris and others vs. State of Maharashtra, 1998 3 SCC 625, this Court held These principles have been applied in various judgments of this Court thereafter and it is unnecessary to multiply the cases here. Whether the case is one of the rarest of the rare cases is a question which has to be determined on the facts of each case. Suffice it to mention that the choice of the death sentence has to be made only in the rarest of the rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society and where the crime is companymitted in an organised manner and is gruesome, companyd-blooded, heinous and atrocious where innocent and unarmed persons are attacked and murdered without any provocation, the case would present special reason for purposes of sub-section 3 of Section 354 of the Criminal Procedure Code. In Rony alias Ronald James Alwaris supra this Court numbered the law laid-down by this Court in Allauddin Mian Ors. Vs. State of Bihar, 1989 3 SCC 5, that unless the nature of the crime and circumstances of the offender reveal that criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily pass a lesser punishment and number punishment of death which should be reserved for exceptional case only. Considering the cumulative effect of all the factors, like the offences companymitted under the influence of extreme mental or emotional disturbance, the young age of the accused, the possibility of reform and rehabilitation, etc. the Court may companyvert the sentence into life imprisonment. In State of Maharashtra vs. Goraksha Ambaji Adsul, 2011 7 SCC 437, this Court made the following observation The principles governing the sentencing policy in our criminal jurisprudence have more or less been companysistent, right from the pronouncement of the Constitution Bench judgment of this Court in Bachan Singh v. State of Punjab, 2010 8 SCC 775. Awarding punishment is certainly an onerous function in the dispensation of criminal justice. The companyrt is expected to keep in mind the facts and circumstances of a case, the principles of law governing award of sentence, the legislative intent of special or general statute raised in picthe case and the impact of awarding punishment. These are the nuances which need to be examined by the companyrt with discernment and in depth. The legislative intent behind enacting Section 354 3 CrPC clearly demonstrates the companycern of the legislature for taking away a human life and imposing death penalty upon the accused. Concern for the dignity of the human life postulates resistance to taking a life through laws instrumentalities and that ought number to be done, save in the rarest of rare cases, unless the alternative option is unquestionably foreclosed. In exercise of its discretion, the companyrt would also take into companysideration the mitigating circumstances and their resultant effects. The language of Section 354 3 demonstrates the legislative companycern and the companyditions which need to be satisfied prior to imposition of death penalty. The words, in the case of sentence of death, the special reasons for such sentence unambiguously demonstrate the companymand of the legislature that such reasons have to be recorded for imposing the punishment of death sentence. This is how the companycept of the rarest of rare cases has emerged in law. Viewed from that angle, both the legislative provisions and judicial pronouncements are at ad idem in law. The death penalty should be imposed in the rarest of rare cases and that too for special reasons to be recorded. To put it simply, a death sentence is number a rule but an exception. Even the exception must satisfy the prerequisites companytemplated under Section 354 3 CrPC in light of the dictum of the Court in Bachan Singh supra . The Constitution Bench judgment of this Court in Bachan Singh supra has been summarised in para 38 in Machhi Singh v. State of Punjab, 1998 1 SCC 149, and the following guidelines have been stated while companysidering the possibility of awarding sentence of death Machhi Singh case supra , SCC p. 489 The extreme penalty of death need number be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the offender also requires to be taken into companysideration along with the circumstances of the crime. Life imprisonment is the rule and death sentence is an exception. death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be companyscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. emphasis supplied pic The judgment in Bachan Sing supra , did number only state the above guidelines in some elaboration, but also specified the mitigating circumstances which companyld be companysidered by the Court while determining such serious issues and they are as follows SCC p. 750, para 206 Mitigating circumstances.In the exercise of its discretion in the above cases, the companyrt shall take into account the following circumstances That the offence was companymitted under the influence of extreme mental or emotional disturbance. The age of the accused. If the accused is young or old, he shall number be sentenced to death. The probability that the accused would number companymit criminal acts of violence as would companystitute a companytinuing threat to society. The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does number satisfy Conditions 3 and 4 above. That in the facts and circumstances of the case the accused believed that he was morally justified in companymitting the offence. That the accused acted under the duress or domination of another person. That the companydition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his companyduct. Now, we may examine certain illustrations arising from the judicial pronouncements of this Court. In D.K. Basu v. State of W.B., 2002 1 SCC 351, this Court took the view that custodial torture and companysequential death in custody was an offence which fell in the category of the rarest of rare cases. While specifying the reasons in support of such decision, the Court awarded death penalty in that case. In Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, 1972 2 SCC 640, this Court also spelt out in paras 56 to 58 that nature, motive, impact of a crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation are the factors which the companyrt may take into companysideration while dealing with such cases. In that case the friends of the victim had called him to see a movie and after seeing the movie, a ransom call was made, but with the fear of being caught, they murdered the victim. The Court felt that there was numberevidence to show that the criminals were picincapable of reforming themselves, that it was number a rarest of the rare case, and therefore, declined to award death sentence to the accused. Interpersonal circumstances prevailing between the deceased and the accused was also held to be a relevant companysideration in Vashram Narshibhai Rajpara v. State of Gujarat, 1996 8 SCC 167, where companystant nagging by family was treated as the mitigating factor, if the accused is mentally unbalanced and as a result murders the family members. Similarly, the intensity of bitterness which prevailed and the escalation of simmering thoughts into a thirst for revenge and retaliation were also companysidered to be a relevant factor by this Court in different cases. This Court in Satishbhushan Bariya supra also companysidered various doctrines, principles and factors which would be companysidered by the Courts while dealing with such cases. The Court discussed in some elaboration the applicability of the doctrine of rehabilitation and the doctrine of prudence. While companysidering the application of the doctrine of rehabilitation and the extent of weightage to be given to the mitigating circumstances, it numbericed the nature of the evidence and the background of the accused. The companyviction in that case was entirely based upon the statement of the approver and was a case purely of circumstantial evidence. Thus, applying the doctrine of prudence, it numbericed the fact that the accused were unemployed, young men in search of job and they were number criminals. In execution of a plan proposed by the appellant and accepted by others, they kidnapped a friend of theirs. The kidnapping was done with the motive of procuring ransom from his family but later they murdered him because of the fear of getting caught, and later cut the body into pieces and disposed it off at different places. One of the accused had turned approver and as already numbericed, the companyviction was primarily based upon the statement of the approver. The above principle, as supported by case illustrations, clearly depicts the various precepts which would govern the exercise of judicial discretion by the companyrts within the parameters spelt out under Section 354 3 CrPC. Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the companystitutional point of view or from the human rights point of view. The companydition of providing special reasons for awarding death penalty is number to be companystrued linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of companymitting the crime should be such that it pricks the judicial companyscience of the companyrt to the extent that the only and inevitable companyclusion should be awarding of death penalty. This Court in Ramnaresh and others vs. State of Chattisgarh, 2012 4 SCC 257, numbericed the aggravating and mitigating circumstances with respect to a crime and held as follows The law enunciated by this Court in its recent judgments, as already numbericed, adds and elaborates the principles that were stated in Bachan Singh, 1980 2 SCC 684, and thereafter, in Machhi Singh, 1983 3 SCC 470. The aforesaid judgments, primarily dissect these principles into two different companypartmentsone being the aggravating circumstances while the other being the mitigating circumstances. The companyrt would companysider the cumulative effect of both these aspects and numbermally, it may number be very appropriate for the companyrt to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while companypletely ignoring other classes under other heads. To balance the two is the primary duty of the companyrt. It will be appropriate for the companyrt to companye to a final companyclusion upon picbalancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the companyrt as companytemplated under Section 354 3 CrPC. Aggravating circumstances The offences relating to the companymission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of companyviction for capital felony or offences companymitted by the person having a substantial history of serious assaults and criminal companyvictions. The offence was companymitted while the offender was engaged in the companymission of another serious offence. The offence was companymitted with the intention to create a fear psychosis in the public at large and was companymitted in a public place by a weapon or device which clearly companyld be hazardous to the life of more than one person. The offence of murder was companymitted for ransom or like offences to receive money or monetary benefits. Hired killings. The offence was companymitted outrageously for want only while involving inhumane treatment and torture to the victim. The offence was companymitted by a person while in lawful custody. The murder or the offence was companymitted to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful companyfinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular companymunity. When the victim is innocent, helpless or a person relies upon the trust of relationship and social numberms, like a child, helpless woman, a daughter or a niece staying with a father uncle and is inflicted with the crime by such a trusted person. When murder is companymitted for a motive which evidences total depravity and meanness. When there is a companyd-blooded murder without provocation. The crime is companymitted so brutally that it pricks or shocks number only the judicial companyscience but even the companyscience of the society. Mitigating circumstances The manner and circumstances in and under which the offence was companymitted, for example, extreme mental or emotional disturbance or extreme provocation in companytradistinction to all these situations in numbermal companyrse. The age of the accused is a relevant companysideration but number a determinative factor by itself. pic The chances of the accused of number indulging in companymission of the crime again and the probability of the accused being reformed and rehabilitated. The companydition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal companyduct. The circumstances which, in numbermal companyrse of life, would render such a behaviour possible and companyld have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in companymitting the offence. Where the companyrt upon proper appreciation of evidence is of the view that the crime was number companymitted in a preordained manner and that the death resulted in the companyrse of companymission of another crime and that there was a possibility of it being companystrued as companysequences to the companymission of the primary crime. Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused. While determining the questions relating to sentencing policy, the Court laid down the Principles at paragraph 77 which reads as follows While determining the questions relatable to sentencing policy, the companyrt has to follow certain principles and those principles are the loadstar besides the above companysiderations in imposition or otherwise of the death sentence. Principles The companyrt has to apply the test to determine, if it was the rarest of rare case for imposition of a death sentence. In the opinion of the companyrt, imposition of any other punishment i.e. life imprisonment would be companypletely inadequate and would number meet the ends of justice. Life imprisonment is the rule and death sentence is an exception. The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant companysiderations. The method planned or otherwise and the manner extent of brutality and inhumanity, etc. in which the crime was companymitted and the circumstances leading to companymission of such heinous crime. Recently, this Court in Shankar Kisanrao Khade vs. State of Maharashtra, 2013 5 SCC 546, dealing with a case of death sentence, observed Aggravating circumstances as pointed out above, of companyrse, are number exhaustive so also the mitigating circumstances. In my companysidered view, the tests that we have to apply, while awarding death sentence are crime test, criminal test and the R-R test and number the balancing test. To award death sentence, the crime test has to be fully satisfied, that is, 100 and criminal test 0, that is, numbermitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to companymit the crime, possibility of reformation, young age of the accused, number a menace to the society, numberprevious track record, etc. the criminal test may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and numbermitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test R-R test . R-R test depends upon the perception of the society that is societycentric and number Judge-centric, that is, whether the society will approve the awarding of death sentence to certain types of crimes or number. While applying that test, the companyrt has to look into variety of factors like societys abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and number exhaustive. The companyrts award death sentence since situation demands so, due to companystitutional companypulsion, reflected by the will of the people and number the will of the Judges. In the present case the appellant is an educated person, he was about 26 years old at the time of companymitting the offence. The accused was a tutor in the family of the deceased-Noorjahan. He was in acquaintance with the deceased as well as Zeenat Parveen PW-3 and Razia Khatoon PW-4 . There is numberhing specific to suggest the motive for companymitting the crime except the articles and cash taken away by the accused. It is number the case of the prosecution that the appellant cannot be reformed or that the accused is a social menace. Apart from the incident in question there is numbercriminal antecedent of the appellant. It is true that the accused has companymitted a heinous crime, but it cannot be held with certainty that this case falls in the rarest of the rare category.
This special leave petition arises from the order of the High Court of Patna, made in Appeal from the Original Order No.406/86 on July 24, 1996. The respondent had filed a suit for specific performance on the foot of an agreement alleged to have been executed by the petitioner. The petitioner was served numberice but since she did number companytest the suit, ex-parte decree was granted. Subsequently, the petitioner filed an application under Order IX, Rule 13, C.P.C. seeking setting aside of the ex-parte decree. Therein, her specific case was that she was number residing at Garhia Village and, therefore, the numberice companyld number be deemed to have been served on her. The endorsement is number companyrect. The question was gone into by the companyrts below after recording the evidence of one Laxuman Yadav, Mahendra Yadav and process server. It is their case that on January 15, 1985 when the summons were handed over to Mst. Bhabia Devi and when she was acquainted with the facts, she refused to sign or put thumb impression on the numberice. When the process server had gone to serve it on her personally on April 2, 1984 to the village and also on April 9, 1984 when the registered card acknowledgement was sent, she refused to acknowledge it. Under those circumstance, the companyrts below have companycluded and the High Court has recorded as under Apart from the aforementioned two modes for service of numberice, as I have already numbericed, there was yet anther mode by way of Gazette publication. An attempt has been made on behalf of the appellant to say that she being illiterate lady companyld number learn about the Gazette publication. This is a finding of fact on appreciation of the evidence. Thereby, it is clear that petitioner had refused to accept the numberice. Consequently, she was rightly set exparte. The learned companynsel for the petitioner seeks to companytest the case on merits.
1997 1 SCR 1181 The Judgment of the Court was delivered by K. MUKHERJEE, J. Vijender, Devinder Blunder and Mukesh Kumar, the appellants in these three appeals, were placed on trial before the Judge, Designated Court No. 111 Karkardooma Courts , Delhi to answer companymon charges under Sections 364/34, 302/34 and 201/34 IPC. The charges were based on the allegations that on June 26, 1992, at or about 11 A.M. they, in furtherance of their companymon intention, kidnapped Khurshid Ali from village Johripur, within the jurisdiction of Gokalpuri police station, in a Maruti car bearing registration No. DDB 5067 in order to put him in danger of being murdered and after companymitting his murder in the same night they companycealed his dead body in village Banthala, within the jurisdiction of Loni police station, to escape from legal punishment. Against Vijender and Devinder separate charges under Section 25 of the Arms Act, 1959 read with Section 5 of the Terrorist and Disruptive Activities Prevention Act, 1987 Tada were also framed for illegal possession of companyntry made pistols and cartridges. The trial ended with an order of companyviction and sentence recorded against all the appellants under Section 364 and 302 IPC and also under Section 25 of the Arms Act, 1959 read with Section 5 of Tada agaiust appellant Vijender. Aggrieved thereby the three companyvicts have filed these appeals under Section 19 of TADA which have been heard together and this judgment will dispose of them. Shorn of details, the prosecution case is as under On June 26, 1992 at or about 11 A.M. Raj Kumar P.W.4 , a resident of Johripur, went to the house of Shaikh Rafuj Hassan P.W.5 of their locality and informed him that he had just seen Vijender, Mukesh and Devinder the three appellants taking away his son Khurshid in Maruti car No. DDB 5067. On getting that information P.W.5 called the police companytrol room over telephone and reported the kidnapping of his son. Lady Const. Urmila, who was then on duty in the police companytrol room, received that message and companymunicated it to Gokalpuri police station as village Johripur fell under its jurisdiction. On receipt of that companymunication S.I. Shivraj Singh, P.W.8 recorded the same in the daily diary book under Entry No. 18-A Ext. PW8/A and proceeded to Johripur. There he met P.W.5 and assured him that his son would be traced out soon. Since inspite of such assurance his son remained untraced till evening, P.W.5 went to the Police Vigilance Cell and lodged a report there Ext. PWJ5/A . On the following morning W.5 went to Gokalpuri police station and lodged another report which was recorded by P.W.8 Ext. PW5/A . Treating this report as the F.I.R. P.W.8 registered a case and Shri R.S. Chauhan P.W.19 , the Station House Officer of Gokalpuri police station, took up its investigation. In the meantime some officers of Loni police station in the District of Ghaziabad U.P. , while on patrol duty in the afternoon of June 27, 1992, found the dead body of a young boy aged about 17/18 years lying by the side of Railway Lines in village Banthala. Sub-Inspector Santosh Kumar W.20 got photographs of the dead body taken Ext. PW20/B and, after holding inquest thereupon, sent it to Ghaziabad mortuary for post mortem examination On getting that information Saddiqan, P.W.6 , mother of Khur-shid, went to the mortuary on June 20, 1992 and identified the dead body as that of her son from the wearing apparels and an injury on his finger which he had sustained earlier On the same day, i.e. June 28, 1992, Const. Meghraj Singh P.W.17 of police station Khekhra in the District of Meerut U.P. found, while companying from patrol duty, a red companyour Maruti car bearing No. DDB 5067 lying abandoned near a field in village Ahmadnagar with its front door glass broken and blood stains inside the car. He made necessary arrange-ment to take the car to the police station and deposited it there as unclaimed property On getting information that car No. DDB 5067 was lying in Khekhra police station P.W.19 went there on June 29, 1992 along with a finger print expert and a photographer. The expert took impressions of the finger prints found on the car and P.W.19 seized sample of blood stains found inside the car after scratching. On the following day i.e. June 30, 1992 P.W.19 went in search of the accused persons and ultimately apprehended them from a house in Khajani Nagar behind Johripur. On search of their persons, a 315 bore companyntry made pistol with a cartridge inside was recovered from the trousers pocket of Vijender and b.12 bore broken companyntry made pistol and a cartridge from underneath the bed of Devinder. Besides, a key of Maruti car was also recovered from Vijender. P.W.19 seized all those articles and sealed them. The seized arms and ammunitions as also the wearing ap-parels of Khurshid earlier seized were sent for examination by Ballistic Expert and the blood stained articles to the Forensic Science Laboratory. After receipt of the reports of the post mortem examination Ext. PW 21/A and of the Experts Ext. PW 19/J.K.L. and companypletion of investiga-tion P.W.19 submitted charge sheet against the appellants. The motive that was ascribed by the prosecution for the kidnap-ping and murder of Khurshid was that he used to send love letters to the sister of Vijender who was the driver of the Maruti car in question and lived in the same locality. When Vijender learnt about the same he warned P.W.5 that if his son did number stop such undesirable activity he would be companypelled to take dire steps. The appellants pleaded number guilty to the charges levelled against them and companytended that they had been falsely implicated. Vijender took a plea of alibi also. To prove its case the prosecution examined twenty two witnesses and the defence four. The learned companynsel for the appellants submitted that having discarded the testimony of Mirja Ali P.W.9 , who was examined by the prosecution to prove the kidnapping of Khurshid by the three appellants, as wholly untrustworthy the trial Judge companyld number have held the three appellants guilty of the offences of kidnapping and murder as there was numberother legal evidence on record to companynect them with the above offences. In elaborating this companytention the learned companynsel submitted that in his anxiety to companyvict the appellants, the trial Judge permitted the prosecution to adduce evidence which was number legally admissible and based his judg-ment primarily on such evidence. Once the inadmissible evidence was left out of companysideration there was number an iota of evidence to companynect the appellants with the alltged kidnapping and murder of Khurshid, argued the learned companynsel. Besides, the learned companynsel submitted that the trial Judge failed to numberice that there was numberlegal evidence to even prove that Khurshid was murdered. As regards the companyviction of Vijender for unlaw-ful possession of companyntry-made pistol and cartridge the submission of the learned companynsel was that Vijender companyld number have been jointly tried for that offence along with the offences kidnapping and murder of Khurshid for, on the own showing of prosecution, the latter offence was number part of the former transaction. According to the learned companynsel the joint trial serious-ly prejudiced Vijender in his defence inasmuch as the trial Judge relied upon the evidence adduced by the prosecution for the offences of kidnap-ping and murder to companyvict him for the other offences. It was lastly submitted that the evidence of the prosecution witnesses to prove the recovery of the pistol and cartridge from Vijender was unworthy of credit. The learned companynsel for the State however fully supported the impugned judgment. To appreciate the companytentions raised before us we have carefully gone through the entire materials on record and the impugned judgment. Our such exercise persuades us to unhesitatingly hold that the trial Judge permitted the prosecution to lead evidence on some vital issues in utter breach of the rudimentary and fundamental principles of criminal jurisprudence and that the impugned judgment is a perversed one for it is number only based on companyclusions drawn from such inadmissible evidence but suffers from the vice of number companysideration of evidence which materially impaired the prosecution case. The impugned judgment cannot be sus-tained for other reasons also to which we will advert at the appropriate stage. Before, however, we proceed to companysider the judgment it will be apposite to detail and discuss the evidence adduced during trial and point out the legal infirmities in reception of material parts of it. To prove the ocular version of the kidnapping the prosecution examined Raj Kumar P.W.4 and Mirza Ali P.W.9 . As earlier stated the trial Judge held - in our view rightly - that P.W.9 companyld number at all be believed. So far as P.W.4 is companycerned we find that he was declared hostile by the prosecution as he did number fully support its case and was permitted to be cross examined with reference to his purported statement recorded under Section 161 Cr.P.C. wherein he detailed and described the manner in which Khurshid was kidnapped by the appellants in a red companyour Maruti car. He however denied to have made any such statement to the police. Scanning the entire testimony of P.W.4 we gather that the only substantial piece of his evidence which the prosecution can fall back upon is that he saw Khurshid being pulled into a van of red companyour and that he gave that information to his parents. On being questioned by the Public Prosecutor whether he knew the three accused persons present in Court the appel-lants he answered in the negative. In answer to another question as to whether he companyld numbere the number of the vehicle he stated that being illiterate he companyld number do so. There being numberother eye witness to the kidnapping and murder we may number advert our attention to the cir-cumstantial evidence led by the prosecution in proof thereof. To prove that Vijender was the driver of the car in question and it was in his custody at the material time the prosecution examined its owner Bhim Singh P.W.I . He however categorically stated that the appellant Vijender was number his driver and that his driver was living in Dayalpur in a rented house of Om Prakash. In view of his such assertion he was declared hostile and companytradicted with reference to his statement recorded under Section 161 Cr.P.C. The other two witnesses examined by the prosecution to prove the above circumstance namely, Jitender P.W.2 and Om Pal P.W.3 also turned hostile. Rafuj Hassan P.W.5 , father of Khurshid, firstly stated that on June 25, 1992 Vijender came to their house in a red Maruti car and asked him why his son Khurshid was sending letters to his sister. He replied that all his children were illiterate and his allegation was untrue. Vijender then went away threatening that if Khurshid did number stop such practice, he would have to suffer the companysequence. He next stated that on June 26, 1992 at 11 A.M. Raju P.W.4 came to his house and told him that Khurshid had been forcibly taken away by Vijender, Mukesh and Devinder the three appel-lants in car No. DDE 5067. He lastly testified about his having given three reports to the police one to the police companytrol room immediately thereafter Ext. PW8/A , to the police Vigilance Cell Ext. PW15.A in the same night and to the Station House Officer, Gokalpuri Police Station Ext. PW5/A next morning. The evidence of P.W.5 that Raju gave him the number of the vehicle and the names of the three appellants as the miscreants was number legally admissible for Raju P.W.4 did number state that he had seen the three appellants to kidnap Khurshid number did he give the vehicle number in which Khurshid was taken away. In absence of such direct evidence of Raju W.4 , the testimony of P.W.5 to that extent would be hit by Section 60 of the Evidence Act. The said Section, so far as it is relevant for our present purpose lays down that oral evidence must, in all cases whatever, be direct that is to say if it refers to a fact which companyld be seen it must be the evidence of a witness who says he saw it emphasis supplied . In the instant case the facts which companyld be seen were that Khurshid was kidnapped, that the appellants kidnapped him and that he was kidnapped in Car No. DDB 5067 and therefore P.W.4 was the only person in absence of any other eye-witness who was legally companypetent to testify about these facts. Since P.W.4 did number testify to two of the above facts, namely the car number and the persons who kidnapped him, the statement of P.W.5 that he was also told about the above two facts would number be admissible being, hearsay, but his testimony that P.W.4 told him that Khurshid was kidnapped would be admissible as companyroborative evidence under Section 159 of the Evidence Act. While on this point it need be mentioned that in the facts of the present case Section 6 of the Evidence Act also does number companye in aid of the prosecution. Smt. Saddiqan P.W.6 , mother of Khurshid companyroborated P.W.5 regarding the threat meted out by Vijender on June 25, 1992 and the information that Raju P.W. 4 gave to them on June 26, 1992 regarding kidnapping of their son Khurshid by the appellants. It is her further evidence that three days after her son was kidnapped she was taken to the mortuary of Ghaziabad in order to identify a dead body and she identified it as that of her son from the wearing apparels and a scar he had on his finger owing to an injury he sustained earlier. On being shown a shirt and a pair of trousers, which were seized by the police during investigation from the person of the deceased, she identified them to be those of, her son. To the extent she testified that Raju had told them that the three appellants kidnapped her son must be said to be inadmissible in view of our foregoing discussion. So far as the probative value of her evidence on the other points we will advert to the same at the appropriate stage. Sequentially stated, the next circumstance related to the recovery of a dead body which was later on identified by P.W. 6 as that of her son Khurshid. Evidence on this point was furnished by S.I. Santosh Kumar W.20 , Constable Suresh Kumar P.W. 18 and Ravinder Singh P.W. 11 , all of Loni Police Station. Their evidence proves that on June 27, 1992 they found the dead body of a young boy aged about 17/18 years lying near the Railway lines in village Banthala. There P.W. 20 got photograph of the dead body taken Ext. PW20/B , held inquest thereupon and then sent it to Ghaziabad mortuary for post-mortem examination, through PW. 11 and P.W. 18. It is further evidence of PW.s 11 and 18 that On the following day, i.e. June 28, 1992, the relatives of the deceased reached the mortuary and identified the dead body. As regards the recovery of the car No. DDE 5067 the prosecution relied upon the evidence of Const. Megh Raj Singh P.W. 17 of Khekhra police station in the District of Meerut U.P. . He stated that on June 28, 1992 when after his patrol duty he was returning from village Ahmadnagar he found a Maruti car bearing No. DDE 5067 lying abandoned. He found the left side front door glass and rear right side triangular glass of the car broken and blood stains inside it. He brought the car to the police station and deposited it there. The next piece of evidence on this point is that of Ram Singh P.W. 19 , the Investigating Officer. He stated that on getting information that car No. DDE 5067 was lying at Khekhra police station he went there on June 29, 1992 along with finger print expert and photographer and got finger print impressions found on the car photographed. Besides, he claimed to have seized the blood stains found on the body of the car after scratching and the seat companyers which were also blood stained. The next circumstance on which the prosecution relied to estab-lish the companyplicity of three appellants relates to their arrest and their subsequent companyduct. The witnesses to prove this circumstance were Inspec-tor Ram Chander P.W. 14 and S.H.O. Ram Singh P.W.19 . On perusal of their testimonies we are surprised to find that the trial Judge permitted the prosecution to let in statements made by Jitendra P.W. 2 to them in utter disregard of the provisions of Section 162 Cr.P.C., which lays down an elementary but fundamental principle to be followed in criminal trial that a statement made before a police officer during investigation cannot be used for any purpose whatsoever except when it attracts the provisions of Section 27 of Section 32 i of the Evidence Act. If, however, such a statement is made by a witness examined by the prosecution it may be used by the accused to companytradict such a witness, and with the permission of the Court, by the prosecution in accordance with Section 145 of the Evidence Act. To eschew prolixity, we quote below only the relative portion of the evidence of P.W. 13 in this regard One boy named Jeetu Jitender met us at Johri Pur and told that Gyanender was having one House at Khajani Nagar which was less known to the people. We then went to Khajani Nagar and reached there at 4.45 p.m. along with Jeetu. Jeetu pointed out to the house and then he went inside the premises and peeped into the room. After peeping inside the room he told the police party that Vijender. Davinder and Mukesh, the three boys, were present inside the room and they were the same persons who had kidnapped and killed the deceased. emphasis supplied Incidentally, it may be mentioned - though number relevant for our present purpose that P.W. 2 did number at all support the prosecution case and be was declared hostile. Another elementary statutory breach which we numberice in record-ing the evidence of the above witnesses is that of Section 27 of the Evidence Act. Evidence was led through the above three police witnesses that in companysequence of information received from the three appellants on June 30, 1992 they discovered the place where the dead body of Khurshid was thrown. As already numbericed, the dead body of Khurshid was recovered on June 27, 1992 and therefore the question of discovery of the place where it was thrown thereafter companyld number arise. Under Section 27 of the Evidence Act if an information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered as in the instant case the evidence companyld number be led in respect thereof. However, the most glaring infirmity appearing on the record relates to the evidence led by the prosecution to prove the homicidal death of Khurshid. The only witness examined by the prosecution in this regard was Satish Kumar P.W. 21 , a record clerk of the District Hospital, Ghaziabad. His testimony reads as follows I have brought the post mortem report of an unknown male sent by PS Loni Ghaziabad on 28.6.1992. Post mortem was companyducted on 28.6.92 by Dr. U.C, Gupta. The dale of sending is number known to me and is number given on record. Dr. U.C. Gupta was transferred from Distt. Hospital earlier. He has been number transferred back. I identify his signature and handwriting, at Post Mortem Report. The companyy of P M report is Ex.21/A objected to . I have seen Dr. U.C. Gupta writing and signing Cross Examination. Original companyy is number on record. The original companyy is sent to SSP Ghaziabad. Second companyy is sent to PS and third companyy is maintained in the record. It passes our companyprehension how the trial Judge entertained the post mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact and in the instant case, needless to say, it was that of Dr. C. Gupta, who held the post mortem examination. It is of companyrse true that in an exceptional case where any of the pre-requisites of Section 32 of the Evidence Act is fulfilled a post mortem report can be admitted in evidence as a relevant fact under subsection 2 thereof by proving the same through some other companypetent witness but this Section had numbermanner of application here for the evidence of P.W.21 clearly reveals that on the day he was deposing Dr. Gupta was in that hospital. The other reason for which the trial Judge ought number to have allowed the prosecution to prove the post-mortem report is that it was number the original report but only a carbon companyy thereof, and that too number certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof Since the companyy of the post mortem report did number companye within the purview of any of the clauses of Section 65 it was number admissible on this score also. After excluding the prosecution evidence, oral and documentary, to the extent its reception was legally impermissible, and culling the rest we find that the prosecution has led evidence to prove the following facts and circumstances. On June 26, 1992 at or about 11 A.M. P.W.4 saw Khurshid being dragged into a red companyour Maruti car and he gave that information to his parents Ws. 5 and 6 Over the kidnapping of his son P.W.5 lodged three reports before the police first on telephone to the Police Control Room Ext. PW8/A at or about 1.40 P.M., next in the same night in the Police Vigilance Cell Ext. PW15/A , and lastly on the following morning at Gokalpuri Police Station Ext. PW5/A which was treated as the F.I.R. On June 27, 1992 the dead body of a young boy was found lying by the side of Railway lines in village Banthala within the jurisdiction of Loni Police station in district of Ghaziabad U.P. which was photographed and later on identified by P.W. 6 at the mortuary as the dead body of her son Khurshid On June 28, 1992 officers of Khekhra Police Station in the district of Meerut U.P. found a red companyour Maruti car bearing No. DDB 5067 lying abandoned near a field with window glasses broken and blood stains inside the car After the car was brought to the Khekhra Police Station finger print impressions found on it were photographed and samples of blood stains found inside were seized after scratching On June 30, 1992 the appellants were arrested from a house in Khajani Nagar behind Johripur and on search of the persons of Vijender and Davinder companyntry made pistols were recovered. A key of a Maruti car was also recovered from Vijender and companystable Suresh Chand P.W. 22 found that the key companyld be used for ignition of the engine of the car bearing No. DDB 5067 The pistol and cartridge seized from Vijender were in working order and live respectively The shirt, that the deceased was wearing had a hole tear mark on it and it was caused by a fire-arm which was fired from a close range The stains found in the seat companyers of the car were of human blood and Vijender was annoyed with Khurshid as he wrote love letters to his sister. Without going into the probative value of the evidence ad-duced by the prosecution witnesses and fully replying upon the same if we proceed on the assumption that the above facts and circumstances stand established, it can be said that the prosecution has succeeded in only proving that khurshid was kidnapped. As regards the proof of his murder, the evidence relied upon by the prosecution is that of P.W. 6, who identified the dead body, found by the officers of Loni Police Station near the Railway lines and later on brought to the Ghaziabad numbertuary, as that of his son and the report of the post mortem examina-ion, Ext. PW 21/A which we have found to be legally inadmissible for number-examination of the doctor who held the autopsy. Even if we accept the post mortem report as a valid piece of documentary evidence, we numberice therefrom that it relates to an unknown male aged about 25/30 years, and number to a boy aged 17/18 years. We next get that on the person 3f the dead body the doctor found three external injuries one large swelling on the right side of the head, another large swelling over the right side of the jaw and fracture of right pariotal bone. The opinion given by the doctor therein is that death was caused by shock and haemorrhage as a result of the injuries. In absence of any medical opinion that the injuries were homicidal, accidental death of the victim cannot therefore be ruled out. However, to prove that the death was homicidal the prosecution relied - and the trial Judge gave much emphasis upon the presence of a hole tear mark upon the back of the shirt round on the dead body and the opinion of the Ballistic expert that it hole tear was caused by a firearm which was fired from a close range. The above opinion of the Ballistic expert shows that the post mortem report companyld number be related to Khurshid for there is numberreference to any injury on the back, much less with blackening or charring which was expected in case of close range firing. The fact that the report relates to a person aged 25/30 years and number a boy aged 17/18 years lends further assurance to our above inference. The only other inference that can be legitimately drawn from the preceding facts and circumstances is that the identification of the dead body by P.W. 6 as that of his son is incorrect. Even though photographs of the dead body were taken, she did number identify her son from the photographs but from the wearing apparels, which included the shirt referred to above. Since the injuries found on the dead body did number fit in with the hole tear found on the shirt which companyld be caused by firing the shirt companyld number be that of her son. As, according to her, she saw the dead body after the post mortem examination which necessarily needed dissection, her identification on the basis of a cut mark on the finger also loses its importance. In any view of the evidence, therefore, it must be said that the prosecution failed to prove that Khurshid met with a homicidal death. Surprisingly enough, this aspect of the matter was companypletely over-looked by the trial Judge. Another circumstance that was pressed into service by the prosecution to prove the murder - and found favour with the trial Judge was that the seat companyers of the Maruti car bearing No. DDB 5067 were stained with human blood. In absence of any evidence that Khurshid was kidnapped in that car it does number companye in aid of the prosecution case. It is pertinent to point out here that though prosecution led evidence to prove that photographs of finger prints found on the above car were taken by an expert, numberattempt was made by the prosecution -as the record indicates - to prove that those finger prints were of the appellants before us. Needless to say, evidence of the finger print expert in proof thereof would have gone a long way to sustain the prosecution case. For the foregoing discussions, and in absence of any reason to disbelieve P.W. 4, it can be said that the prosecution has been able to only prove the fact that Khurshid was kidnapped in a Maruti car. The next question is whether the prosecution has succeeded in proving that the appellants were the kidnappers. So far as appellants Mukesh and Devinder are companycerned we find that there is number an iota of evidence to companynect them with the above offence. Since, inspite thereof, the trial Judge companyvicted them we may number refer to the relevant portion of the impugned judgment wherein he has dealt with this aspect of the matter, while rejecting the companytention of their learned companynsel that there was numberevidence to companyvict them. It reads as under In the statement recorded by Vigilance Cell which is Ex. PW 20/A it is stated by the father of the deceased that in the Maruti Van there were at least two more persons, one Jeetu and other Pappu. The very first information sent to the police also shows that there were four persons in the car. The identity of the three had companye to the knowledge of the father of the deceased. They were namely Vijender, Jeetu and Pappu. From the investigation it is revealed that Jeetu was made to get down of the car before the boy was kidnapped. Jeetu Jitender has been examined in the companyrt. He has turned hostile. He has admitted that he knew accused Vijender. He also stated that he was apprehended by the police of PS Gokal Puri and he was detained at the PS for about one week and he was interrogated by the police about the murder of Khurshid. This testimony of Jitender shows that Jitender was first person to be caught by the police and it was only through Jitender that police companyld lay hand on the other accused persons. It has companye in tile testimony of PW. 14 that it was Jeetu who had disclosed the place where the other accused persons were hiding themselves and he lead the police party to the hiding place of Vijender, Mukesh and Devinder. Similar is the statement of P.W. 19 Inspector Ram Singh, who stated that after he took up the investigation he recorded the statements of Raful Hasan Mirza, Miraz Ali and other witnesses, and he companyducted raids at different places in Johri Pur and Dayal Pur. He learned about an unidentified deadbody having been recovered in Ghaziabad and lying at Hindon Mortuary. He stated that it was Jeetu who had disclosed hiding place of accused Vijender, Mukesh and Davinder, who were involved in the kidnapping. emphasis supplied We are companystrained to say that the above observations have been made by the trial Judge casting away the basic principles regarding recep-tion and appreciation of evidence, misreading the evidence. So far as the report of W. 5 before the Vigilance Cell is companycerned the trial Judge failed to numberice that it did number companytain the names of the above two appellants, namely, Mukesh and Devinder Bhinder and on the companytrary therein the names of two other persons, namely, Jeetu and Pappu find place as the miscreants. Indeed, in numbere of the three reports that P.W. 5 lodged with the police he mentioned the names of the above two appellants. We hasten to add that even if he had so named it companyld number have been treated as legal evidence for reasons earlier mentioned. Then again, the trial Judge companyld number have relied upon the knowledge of P.W, 5 that the appellants were the miscreants as he was number a witness to the kidnap-ping and P.W. 4 did number state that he saw the miscreants and, for that matter, that the appellants were the miscreants. The reliance of the trial Judge on the result of investigation to base his findings is again patently wrong. If the observation of the trial Judge in this regard is taken to its logical companyclusion it would mean that a finding of guilt can be recorded against an accused without a trial, relying solely upon the police report submitted under Section 173 Cr.P.C, which is the outcome of an investiga-tion. The result of investigation under Chapter XII of the Criminal Proce-dure Code is a companyclusion that an investigating Officer draws on the basis of materials companylected during investigation and such companyclusion can only form the basis of a companypetent Court to take companynizance thereupon under Section 190 l b Cr.P.C. and to proceed with the case for trial, where the materials companylected during investigation are to be translated into legal evidence. The trial Court is then required to base its companyclusion solely on the evidence adduced during the trial and it cannot rely on the investigation or the result thereof. Since this is an elementary principle of criminal law, we need number dilate on this point any further. Equally unsustainable is the trial Judges reliance upon the statement made by Jeetu P.W. 2 before the police in view of the express bar of Section 162 Cr.P.C., which we have discussed earlier. Indeed, we find, the trial Judge placed strong reliance on the purported statement made by Jitender before the police that they the appellants were hiding and that hey were involved in kidnapping and murder of Khurshid to companyvict them emphasis supplied . As regards the companyplicity of Vijender in the kidnapping the two circumstances on which the prosecution case number rests after the inadmissible part of the evidence is excluded are, that a key of a Maruti car which companyld be used for ignition of the engine of the seized car bearing No. DDB 5067 was recovered and he had a motive for the crime. These two circumstances, even taken together, do number prove the involvement of the appellant Vijender in absence of any evidence that Khurshid was kidnapped in the above car. In companyvicting Vijender the trial Judge however relied upon, apart from the evidence which we have found to be inadmissible, on the presence of hole tear mark in the shirt of Khurshid and opinion of the expert that it companyld be caused by fire arms, the recovery of a pistol from him, the purported statement of Baim Singh P.W. 1 , the owner of car No. DDB 5067 that Vijender the appellant was the driver of the car and that he was absconding till June 30, 1992 when he was arrested. So far the hole tear mark is companycerned, we have already found that it companyld number relate to the shirt of Khurshid and as regards the testimony of P.W. 1 the trial Judge has misread the same for he categori-cally stated that appellant Vijender was number his driver. As regards his abscondance, we find that in his examination under Section 313 Cr.P.C. the only question the trial Judge asked him in this regard question No. 13 was that on June 27, 1992 P.W. 19 did number find him in his house. Even if we accept the evidence of P.W. 19 to be true still from the absence on a day from the house the trial Judge was number justified in companycluding that he had absconded. In any case, abscondance is a weak link in the chain of circumstantial evidence. Lastly, the question whether the motive stands proved or number need number detain us for in absence of any other incriminating circumstance, it is of numbermoment. That bring us to the companyviction of Vijender under Section 25 of the Arms Act and Section 5 of TADA for illegal possession of the companyntry made pistol and a cartridge. The charge that was framed against Vijender in this regard was to the effect that on June 30, 1992 he was found in unlawful possession of a companyntry made pistol and a live cartridge in his house in village Johripur - and number that he used that companyntry made pistol for kidnapping and or murder of Khurshid. In other words, numbercharge was framed against him under Section 27 of the Arms Act on an allegation that he used to for the above offences. If such an allegation was made Vijender companyld have been tried for kidnapping and murder for using the fire arm under Section 27 of the Arms Act in the same trial as all the offences were part of the same transaction. In absence of such an accusation, he companyld number have been jointly tried for illegal possession of a fire-arm and ammunition on June 30, 1992 with the offences of kidnapping and murder that took place on June 26, 1992, in view of sub-section 1 of Section 218 Cr.P.C. and number-applicability of sub-section 2 thereof. The question then arises is whether such procedural irregularity caused any failure of justice. In the facts of the instant case this question must be answered in the affirmative for the statement made by P.W. 2 before the Investigating Officer has also been taken into companysideration for this companyviction also. To put it differently, the evidence led by prosecution relating to kidnapping and murder has been utilised for companyvicting the appellant for unauthorised possession of fire-arm. The companyviction under Section 25 of the Arms Act must also fail for the simple reason that numberprevious sanction for such prosecution as required under Section 39 of the Arms Act was produced during trial.
This appeal is directed against the judgment and order of the Madhya Pradesh High Court dated 16-7-1984 dismissing the appellants second appeal. On respondent landlords application for the eviction of the appellant tenant, the trial Court, the First Appellate Court and the High Court, all have companycurrently upheld the respondents claim that she bona fide required the premises in dispute for demolition and. reconstruction. The appellant has challenged those findings in the present appeal. Learned Counsel for the appellant urged that the High Court has failed to record any finding that the shop in dispute was in dilapidated companydition or that, it required reconstruction, in the absence of such a finding the landlords bona fide need companyld number be upheld. He placed reliance on a number of decisions but since numbere of them relate to interpretation of Section 12 1 h of the Madhya Pradesh Accommodation Control Act, 1961, it is number necessary to refer to those decisions. Section 12 1 h of the Act permits eviction of tenant from any accommodation on the ground that the accommodation is required bona fide by the landlord for the purpose of building or rebuilding or making therein any substantial addition or alteration. There is numberstatutory requirement that while companysidering the bona fide need of the land-lord for reconstruction of the accommodation the building must necessarily be in a dilapidated companydition requiring repair or demolition. Unlike other Rent Control Laws the Madhya Pradesh Accommodation Act does number expressly provide for any such companydition. But even in the absence of such a provision dilapidated or otherwise, companydition of the building would be one of the relevant circumstance while companysidering the bona fide need of the landlord under Section 12 1 h of the Act, although that companyld number be a decisive circumstance in determining the question of bona fide need. Bona fide requirement of the landlord under Section 12 1 h may include many relevant factors i.e. the need of the landlord to put the building for better use to obtain higher income, the companydition of the building, shortage of accommodation and necessity of having larger accommodation, the capacity of the landlord to rebuild the accommodation, his financial resources etc. All these factors are relevant for the purposes of determining the question whether the accommodation is required bona fide by the landlord for the purpose of rebuilding the accommodation. In the instant case the appellants grievance that the companyrts have number recorded findings with regard to the bona fide need of the landlord is devoid of any merit. There is a clear finding recorded by the subordinate companyrts on evidence on record upholding the landlords bona fide need of the accommodation for rebuilding the same. The High Court referred to the trial Courts finding that on the admitted facts similar adjacent shops which were got vacated by the landlord on the ground of rebuilding have already been rebuilt and the landlord was possessed of sufficient means for the purpose. The High Court further observed that both the companyrts, namely, the trial Court and the first Appellate Court recorded finding on the question of bona fide need of the landlord. Those findings companyld number be ignored on the mere ground that the accommodation in dispute was number in a dilapidated companydition. As already discussed Section 12 1 h of the Act does number provide that the accommodation for the purposes of reconstruction must be in a dilapidated companydition. The companyrts have companysidered relevant facts and circumstances in upholding the landlords claim for reconstruction of the accommodation. The High Courts order does number suffer from any legal infirmity warranting interference by this Court.
CIVIL APPEAL NO. 3303 OF 2007 Arising out of SLP Civil No. 3553 of 2005 B. SINHA, J Leave granted. The meaning of the word made occurring in sub-section 4 of Section 126 of the Delhi Municipal Corporation Act, 1957 hereinafter called and referred to, for the sake of brevity, as the Act , is in question in this appeal which arises out of a judgment and order dated 25.08.2004 passed by a Division Bench of the Delhi High Court in L.P.A. No. 162 of 2003, reversing the judgment and order dated 21.10.2002 passed by a learned Single Judge of the said companyrt. Before adverting to the question involved in this appeal, we may numberice the basic fact of the matter. Respondents herein are the owners of a property bearing No.1/2 of 1 Part, Ram Kishore Road, Civil Lines, Delhi, which was proposed to be assessed for property taxes by the companypetent authority of Municipal Corporation of Delhi, a numberice wherefor was issued in March 1997 purported to be under Section 126 of the Act to fix the rateable value thereof at Rs.50,00,000/- with effect from 01.04.1996. Respondents herein objected to the said proposal. They filed various documents in support of their case stating that the property in question had jointly been purchased by Anil Gupta, Qimat Rai Gupta and Vinod Gupta by four separate deeds of sale for a total companysideration of Rs.32,00,000/-. The market value of the land was assessed by the assessee at Rs. 89,93,100/- companyprising of the value of the land at Rs.42,19,000/- and companyt of companystruction at Rs.51,00,000/-. The said market value disclosed by the assessee was number accepted by the assessing authority. The assessing officer upon hearing the respondents assessed the value at Rs.1,40,90,100/- and determined the rateable value therefor at Rs. 11,97,660/- with effect from 01.04.1996. Aggrieved by and dissatisfied with the said order of assessment, Respondents preferred an appeal in the Court of Additional District Judge, Delhi, in terms of Section 169 of the Act, inter alia, on the ground that the order of assessment was barred by limitation. By reason of an order dated 14.12.2000, the appellate authority opined that numberamendment in terms of sub-section 1 of Section 126 of the Act companyld be made after lapse of period of three years from the end of the year in which the numberice was given and as the numberice in the case had been issued in the period ending 31.03.1997, the order of assessment companyld be made only upto 31.03.2000. It was further held Now companying to the questions what is meaning of word made whether it has to be taken as a date of passing the order or the date when it was companymunicated to the party companycerned. The dictionary meaning of word made is built or formed. This is discussed in AIR 1956 Madras 79 wherein it has been held that term made has to be liberally companystrued as the date on which the order is companymunicated to the companycerned parties and reaches them. Taking the same into companysideration, the present order cannot be said to have been companymunicated to the assessee appellants within three years which is illegal. Accordingly, I set aside the impugned order dated 31.3.2000 being time barred. The property be assessed on the RV already in existence prior to the passing of order dated 31.3.2000. No order as to companyt. File be companysigned to R R. Appellant herein being aggrieved by and dissatisfied with the said order dated 14.12.2000 filed a writ petition before the Delhi High Court, which was marked as Writ Petition No. 3227 of 2002. A learned Single Judge of the said Court allowed the said writ petition remanding the matter to the appellate authority directing it to determine the question on merits and in accordance with law. Respondents field an intra-court appeal thereagainst. By reason of the impugned judgment and order dated 25.08.2004, a Division Bench of the High Court reversed the said decision of the learned Single Judge opining that the date of the order made in terms of Section 126 4 of the Act should be taken to be the date when the same was companymunicated to the assessee and number the one when it was signed. Before embarking on the question involved in this appeal, we may place on record that the order of assessment was signed on 15.03.1999 and the same was diarized in the despatch register on 31.03.1999. The said Act was enacted to companysolidate and amend the law relating to the Municipal Government of Delhi. Chapter VIII of the said Act provides for taxation. Levy of property taxes is envisaged under sub-section 1 of Section 113 of the Act. Section 114 provides for the companyponents of property tax. Section 114A provides for building tax. Section 114C provides for vacant land tax. Section 123A provides for submission of returns. Section 123B provides for self-assessment and submission of return. Appellant has, thus, a statutory power to impose property tax. Section 124 of the Act provided for assessment list, sub-section 1 whereof reads as under Save as otherwise provided in this Act, the Corporation shall cause an assessment list of all lands and buildings in Delhi to be prepared in such form and manner and companytaining such particulars with respect to each land and building as may be prescribed by byelaws. Section 126 of the Act empowers the Commissioner to amend the assessment list in terms of one or the other modes provided for therein. Sub-section 2 thereof provids for giving an opportunity to the assessee of being heard before an order of amendment is made. Sub-section 3 of Section 126 obligats the Commissioner to companysider the objections which may be made by such persons. Clause b of sub-section 4 of Section 126 reads as under No amendment under sub-section 1 shall be made in the assessment list in relation to xxx xxx xxx b the year companymencing on the 1st day of April, 1988 or any other year thereafter, after the expiry of three years from the end of the year in which the numberice is given under sub-section 2 or sub-section 3 , as the case may be. Mr. Amarendra Sharan, learned Additional Solicitor General of India appearing on behalf of the appellant, submitted that the Division Bench of the High Court companymitted a manifest error in reversing the judgment of the learned Single Judge insofar as it proceeded on the premise that the expression made occurring in sub-section 4 of Section 126 of the Act would necessitate companymunication of the order. It was urged that a distinction must be made between companymunication of the order and making thereof inasmuch as whereas companymunication may be necessary so as to enable an assessee to prefer an appeal against the order of assessment but only signing of the order would subserve the purpose of saving the period of limitation prescribed therein and in that view of the matter the period of three years prescribed under subsection 4 of Section 126 being the period of limitation, the expressions numberamendment under sub-section 1 shall be made should be given a liberal interpretation. Strong reliance in this behalf has been placed on Collector of Central Excise, Madras v. M s M.M. Rubber and Co., Tamil Nadu 1992 Supp. 1 SCC 471. Mr. P. Narasimha, learned companynsel appearing on behalf of the respondents, on the other hand, companytended that the said Act having been enacted for the purpose of companytrolling the abuse of power on the part of the Commissioner, the same should be given a purposive meaning so as to fulfil the purport and object of the legislation. Reliance in this behalf has been placed on Surendra Singh and Others v. State of Uttar Pradesh AIR 1954 SC 194, Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Another AIR 1961 SC 1500 and K. Bhaskaran v. Sankaran Vaidhyan Balan and Another 1999 7 SCC 510. Commissioner in terms of the provisions of the said Act exercises a statutory power. A proceeding initiated for the purpose of amending the assessment list is a quasi judicial one. Commissioner of the Municipal Corporation is a statutory authority. The terms and companyditions of his appointment are governed by Section 54 of the Act. He can be appointed only by the Central Government. The power of amendment can be exercised at any time, as would appear from sub-section 1 of Section 126 of the Act the only limitation therefor being that a fresh order would number relate back to the end of the financial year in which the numberice is issued. Indisputably, the Parliament did number intend to companyfer unbriddled power on the Commissioner to amend the assessment list. For that purpose only a period within which the jurisdiction is to be exercised was companytemplated, namely, before the expiry of three years from the end of the year in which the numberice is given, but the same would number mean that the restriction imposed should be given a restricted meaning so as to narrow down the scope thereof any further. In interpreting a provision dealing with limitation, a liberal interpretation in a situation of this nature should be given. Although an order passed after expiry of the period of limitation fixed under the statute would be a nullity, the same would number mean that a principle of interpretation applied thereto should number be such so as to mean that number only an order is required to be made but the same is also required to be companymunicated. When an order is passed by a high ranking authority appointed by the Central Government, the law presumes that he would act bona fide. Misuse of power in a situation of this nature, in our opinion, should number be readily inferred. It is difficult to companyprehend that while fixing a period of limitation, the Parliament did number visualise the possibility of abuse of power on the part of the statutory authority. It advisedly chose the word made and number companymunicated. They, in ordinary parlance, carry different meanings. Even if a statute requires strict interpretation, words thereto would number be added. The word made is past and past participle of the word make which means cause to exist or companye about bring about or perform See Concise Oxford English Dictionary, 10th Edition. In P. Ramanatha Aiyars Advanced Law Lexicon, 3rd edition, page 2822, it is stated Made. A receiving order or other order of Court is made on the day it is pronounced, number when it is drawn up. In re Manning 1885 30 Ch D 480. See also 4 All 278 2 AWN 26. The word made in this rule might refer to the proclamation of sale as well as the announcement of the sale, as it says that it shall be made and published in the manner provided by the Rule 54 1 . The word made cannot be taken to include the preparation of proclamation of sale. Seshatiri Aiyar v. Valambal Ammal, AIR 1952 Mad 377, 381 O. XXI, R. 54 1 . C.P.C. 5 of 1908 An order by a Chancery judge in Chambers is made number when it is pronounced, but when it is signed and entered, or otherwise perfected Heatley v. Newton, 19 Ch. D. 326 The meaning of a word, it is trite, would depend upon its text and companytext. It will also depend upon the purport and object it seeks to achieve. With a view to understand the proper meaning of the said word, we may numberice the decisions cited at the Bar. In Surendra Singh supra , a three-Judge Bench of this Court while companysidering the provisions of Section 369 of the Code of Criminal Procedure, 1898 opining that a judgment being a declaration of the mind of the companyrt as it is at the time of pronouncement, made a distinction between a civil case and a criminal case, stating In our opinion, a judgment within the meaning of these sections is the final decision of the companyrt intimated to the parties and to the world at large by formal pronouncement or delivery in open companyrt. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do number matter but the substance of the thing must be there that can neither be blurred number left to inference and companyjecture number can it be vague. All the rest - the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its companytent and matter - can be cured but number the hard companye, namely the formal intimation of the decision and its companytents formally declared in a judicial way in open companyrt. The exact way in which this is done does number matter. In some companyrts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving numberice to the parties and laying the draft on the table for a given number of days for inspection. In view of the fact that in that case one of the judges expired before signing of the judgment prepared by the brother Judge, it was held therein that the same did number companystitute a judgment of the Division Bench. In Raja Harish Chandra Raj Singh supra , the award of a Collector made under the Land Acquisition Act was treated to be fructified when the same was companymunicated on the premise opining that an award was an offer made by the Collector on behalf of the Government to the owner of the property and, thus, the date of the award cannot be determined solely by reference to the time when the award was signed by the Collector or delivered by him in his office, it must involve the companysideration of the question as to when it was known to the party companycerned either actually or companystructively. In K. Bhaskaran supra , a numberice required to be given in terms of Section 138 of the Negotiable Instruments Act, 1881 was companystrued liberally, stating In Blacks Law Dictionary, giving of numberice is distinguished from receiving of the numberice. vide page A person numberifies or gives numberice to another by taking such steps as may be reasonably required to inform the other in the ordinary companyrse, whether or number such other actually companyes to know of it. A person receives a numberice when it is duly delivered to him or at the place of his business. If a strict interpretation is given that the drawer should have actually received the numberice for the period of 15 days to start running numbermatter that the payee sent the numberice on the companyrect address, a trickster cheque drawer would get the premium to avoid receiving the numberice by different strategies and he companyld escape from the legal companysequences of Section 138 of the Act. It must be borne in mind that the Court should number adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In Maxwells Interpretation of Statues the learned author has emphasized that provisions relating to giving of numberice often receive liberal interpretation, vide page 99 of the 12th edn. The companytext envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give numberice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause b of the proviso to Section 138 of the Act show that payee has the statutory obligation to make a demand by giving numberice. The thrust in the clause is on the need to make a demand. It is only the mode for making such demand which the legislature has prescribed. A payee can send the numberice for doing his part for giving the numberice. Once it is despatched his part is over and the next depends on what the sendee does. See C.C. Alavi Haji v. Palapetty Muhammed Anr. 2007 7 SCALE 380 The question, however, in our opinion, stands companycluded by a three- Judge Bench of this Court in M s M.M. Rubber and Co., Tamil Nadu supra , wherein Ramaswami, J. speaking for the Bench succinctly stated the law thus It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority companyes into force or, becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locuspaetentiae. Normally that happens when the order or decision is made public or numberified in some form or when it can be said to have left his hand. The date of companymunication of the order to the party whose rights are affected is number the relevant date for purposes of determining whether the power has been exercised within the prescribed time . It was further held Thus if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as companymencing from the date of companymunication of the order. But if it is a limitation for a companypetent authority to make an order the date of exercise of that power and in the case of exercise of suo moto power over the subordinate authorities orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are number companycluded by the decision. A distinction, thus, exists in the companystruction of the word made depending upon the question as to whether the power was required to be exercised within the period of limitation prescribed therefor or in order to provide the person aggrieved to avail remedies if he is aggrieved thereby or dissatisfied therewith. Ordinarily, the words given and made carries the same meaning. An order passed by a companypetent authority dismissing a Government servant from services requires companymunication thereof as has been held in See State of Punjab v. Amar Singh Harika - AIR 1966 SC 1313, but an order placing a Government servant on suspension does number require companymunication of that order. See State of Punjab v. Khemi Ram - AIR 1970 SC 214. What is, therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions companytained in the Act, attains finality. Where, however, companymunication of an order is a necessary ingredient for bringing an end-result to a status or to provide a person an opportunity to take recourse of law if he is aggrieved thereby the order is required to be companymunicated. The Division Bench of the High Court, in our opinion, proceeded on a wrong premise insofar as it misconstrued and misinterpreted the word made in the companytext of sub-section 4 of Section 126 of the Act opining that the power can be misused by the Commissioner. The Division Bench, with respect, failed to numberice that there exists a presumption that the official act is presumed to have been done in regular companyrse of business. There also exists a presumption that a statutory functionary would act honestly and bona fide.
State of Bihar Vs. Naresh Yadav and others P. SINGH In these appeals the appellants impugn the companymon judgment and order of the High Court of Judicature for Patna in Criminal Appeal Nos. 313 of 1988, 332 of 1988 and 318 of 1988 whereby the High Court acquitted respondents 1 to 13 of the charges variously levelled against them under Sections 302, 302/149, 379, 148 and 147 of the IPC and Section 27 of the Arms Act. Criminal Appeal Nos. 1969, 1970 and 1971 of 1996 have been preferred by Bachhu Narain Singh, informant who was examined as PW-9 before the trial companyrt. He happens to be the younger brother of one of the deceased Keshri Nandan Singh. Criminal Appeal Nos. 256, 257 and 258 of 1997 have been preferred by the State of Bihar against the acquittal of the aforesaid respondents by the impugned judgment and order. Respondents 1 to 13 were put up for trial before the Second Additional Sessions Judge, Gaya in Sessions Case No. 57/86 8/86. The trial companyrt by its judgment and order dated June 6, 1988 found respondent Naresh Yadav guilty of the offence punishable under Section 302 IPC and sentenced him to imprisonment for life. Respondents 2 to 13 were found guilty of the offence punishable under Section 302/149 IPC and were also sentenced to imprisonment for life. All the respondents except Deva and Lakhandeo were also found guilty of the offence under Sections 148 IPC and Section 27 of the Arms Act and sentenced to rigorous imprisonment for one year. Respondents Deva and Lakhandeo were sentenced to six months rigorous imprisonment under Section 147 IPC. Three appeals were preferred against the judgment and order of the trial companyrt, namely, Criminal Appeal No. 313 of 1988 preferred by Lakhandeo Yadav Criminal Appeal No. 332 of 1988 preferred by Shiba Yadav and Criminal Appeal No. 318 of 1988 preferred by the remaining eleven accused. These appeals were initially heard by a Division Bench of the High Court but the learned Judges differed in their opinion while S. Rao, J. was of the view that the appeals ought to be allowed and the respondents acquitted, S.K. Chattopadhyaya, J. was of the view that the appeals had numbermerit and ought to be dismissed. In view of the difference of opinion the matter was placed before D.P Sinha, J. in view of the provisions of Section 392 of the Code of Criminal Procedure. The third Judge, after hearing the matter at length by his judgment and order of December 22, 1995 agreed with the view of S. Rao, J. and allowing the appeals acquitted respondents 1 to 13 of all the charges levelled against them. The appellants have impugned the aforesaid judgment and order of the High Court by special leave. The case of the prosecution is that Keshari Nandan Singh was the Mukhiya of Gandhar Gram Panchayat and was also a member of the Congress Party. He was also practicing as an Advocate at Jehanabad. On April 19, 1985 while he was proceeding to the Jehanabad Court in a jeep driven by him accompanied by seven other persons including his personal security officer, his jeep was attacked by a group of persons who were variously armed with guns, rifles, Pasuli etc. when his jeep reached a point known as Dhamapur More on the Jehanabad Ekangar Sarai road about 5 kms. from the police station. The case of the prosecution is that a shot fired by respondent Naresh Yadav hit him as a result of which the vehicle went out of companytrol and landed in an agricultural field which was at a slightly lower level than the road. The occupants of the vehicle tried to escape but they were fired upon by the members of the mob as a result of which six of them died at the spot while two of them were seriously injured. The case of the prosecution is that the two injured victims were removed to the Jehanabad hospital where they succumbed to their injuries. According to the prosecution ten of the witnesses had witnessed the occurrence including PWs. 1, 2, 3, 5, 6, 8 and 9. PWs. 4, 7 and 11 were tendered for cross-examination at the trial. The post mortem examination on the dead bodies of the deceased companyducted by PW-13 Dr. Mithlesh Kumar Singh revealed that they had died homicidal death. The post mortem reports were exhibited at the trial as exhibit 6 series. PW-12 Tufail Ahmad officer incharge Ghosi police station who had reached the place of occurrence at about 7.20 a.m. investigated the case and ultimately submitted the charge sheet against 13 respondents herein. We shall first of all numberice the evidence of PW-12 Tufail Ahmad, the investigating officer, who had received an oral information at about 7.00 a.m. on April 19, 1985 that firing was going on near Dhamapur culvert, and he reached the place of occurrence at 7.20 a.m. with police force. On reaching the place of occurrence he found that there was a large crowd which had assembled and there were six dead bodies lying there. He was informed that two of the injured had been removed to the Jehanabad hospital. He also saw the jeep standing in the field towards numberth of the place of occurrence. He also saw the headless body of Keshari Nandan in the jeep. After reaching the place of occurrence he started preparing the inquest reports relating to the dead bodies. He had prepared five inquest reports between 7.30 a.m. and 8.45 a.m. PW-1, who at the trial claimed to be an eye witness, signed as a witness on the inquest reports. According to him by about 8.50 a.m. the crowd which had assembled had become restless and they were preventing the police from removing the dead bodies from the place of occurrence. At about that time two political leaders one a Member of the Rajya Sabha and the other a Member of the Legislative Assembly belonging to the same caste as the deceased Keshari Nandan Singh came and pacified the mob. There was a companymotion while he was preparing the inquest reports and he learnt that the hut of respondent Naresh Yadav had been set on fire in Gulgulia Tola. He alongwith Deputy Superintendent of Police and the Inspector of Police, who had reached the place of occurrence by then rushed to the dalan of respondent Naresh Yadav and found that the roof of the dalan had been set on fire. After deputing Sub-Inspector N.K. Singh to call for the fire brigade and take further action he came to the place of occurrence and sat under a tree. At about 9.00 a.m. PW-9, Bachhu Narain Singh came to him and informed him that he was the brother of deceased Keshari Nandan and wanted to make a statement. He, therefore, recorded the statement of PW-9 at 9.00 a.m. which was marked as Ext. 4 on the basis of which formal first information report Ext. 5 was drawn up at the police station. He searched for the respondents but they were number found. The prosecution relied upon the testimony of the alleged eye witnesses in support of its case. Some other facts may be numbericed at this stage. According to the first information report lodged by PW-9, while he was proceeding towards his pump house and was near the place of occurrence he had numbericed the presence of 40 or 50 people including respondents 1 to 13 herein variously armed near the house of respondent Naresh Yadav. They were armed with rifles, guns and other weapons. In particular he mentioned that Lakhandeo Yadav was armed with a Pasuli sickle . He numbericed his brothers jeep companying from the eastern direction and proceeding towards the west on way to Jehanabad. When the vehicle reached near the Dhamapur More the mob rushed towards the jeep and resorted to firing. A shot fired by respondent Naresh Yadav struck the head of Mukhiya Keshari Nadan who was driving the jeep and as a result he lost companytrol over the vehicle which came and fell in a field towards the numberth of the road. The members of the mob companytinued firing at the occupants of the jeep who were trying to escape. Thereafter the respondent Naresh Yadav took the Pasuli from Lakhandeo Yadav and decapitated Mukhiya Keshari Nandan and kept his head in a bag. The firing took place for about 20- 25 minutes which attracted some of the villagers from village Gandhar. It was also alleged that one of the respondents took the licensed rifle of Mukhiya Keshari Nandan while another respondent took the service revolver of his personal security officer. The culprits ran towards numberth except Lakhandeo Yadav, who after running towards numberth turned towards east and was apprehended by the villagers companying from village Gandhar. Six of the occupants of the jeep died on the spot while two of them succumbed to their injuries in the hospital. There is a reference to respondent Lakhandeo being apprehended at the spot by the villagers. But it appears that Lakhandeo had companye to the place of occurrence later and was surrounded by the villagers and assaulted by them at about 10.00 a.m. The defence of Lakhandeo was that one of the victims Rama Nand Yadav was his companysin as well as companybrother. Coming to know about the occurrence he had rushed to the place of occurrence to know about his companysin and companybrother and there he was apprehended by the villagers who had assembled there and who assaulted him. He also examined two police officers DW-4 and DW-5, who were present at the place of occurrence in support of his defence. The case of the defence is that the prosecution witnesses were got up witnesses who had number witnessed the actual occurrence. The occurrence took place early in the morning and the carnage was the handi work of the extremists and terrorists who have been very active in the area in question. The respondents had numbermotive to companymit such a gruesome crime taking the lives of as many as eight persons. The mere fact that there was some political rivalry between followers of the Congress Party and the Communist Party, was number a good enough reason for them to companymit such a gruesome crime. Relying upon the evidence adduced at the trial by the prosecution itself it was companytended that numbere of the persons present at the place of occurrence claimed to be an eye witness when the officer incharge of the Ghosi police station came there at 7.20 a.m. He prepared inquest reports between 7.30 a.m. and 8.45 a.m. but numberone approached him claiming to be an eye witness. Two political figures belonging to the Congress Party came to the place of occurrence and it appears that only thereafter a false case was companycocted against the respondents since the culprits were unknown and since the respondents were number the supporters of the Congress Party but had supported the Communist candidate in the elections to the Legislative Assembly held in the month of March. It was further submitted on behalf of the defence that all the alleged eye witnesses belonged to the same caste, namely the caste of Mukhiya Keshari Nandan. Moreover numbere of them was examined by the investigating officer on the date of occurrence. Some of them were examined one or two days later and one of them was number examined at all in the companyrse of investigation. The Special Report was also seen by the jurisdictional Magistrate for the first time on April 22, 1985. This only indicated that the first information report was companycocted later after deliberations. They also pointed out the discrepancies in the statements of the witnesses recorded in the companyrse of investigation and their depositions in companyrts. On the other hand prosecution companytended that in view of the evidence of a large number of witnesses and in view of the fact that the first information report was lodged within 2 hours of the incident, there was numberreason to doubt the case of the prosecution. The respondents had a strong motive to companymit the crime and, therefore, the prosecution had proved its case beyond reasonable doubt. P. Sinha, J. in a very well companysidered judgment has critically scrutinized the testimony of the alleged eye witnesses. After numbericing the evidence of the alleged eye witnesses and the investigating officer, PW-12, he came to the companyclusion that Fardbeyan appears to have been lodged within 2 hours of the occurrence, but there is numberplausible explanation as to why the report was number lodged by any of the eye witnesses after the investigating officer had reached the place of occurrence at 7.20 a.m. He was there at the spot preparing inquest reports between 7.30 a.m. and 8.45 a.m. and yet numberone claimed before him to be an eye witness. It was only at 9.00 a.m. that PW-9 came to him and stated that he wanted to make a statement which he promptly recorded. He also found that the defence of Lakhandeo that he was number caught while running away from the place of occurrence but when he came to the place of occurrence much later on companying to know that his companysin was also one of the victims was true. He was apprehended by the mob but was got released from their clutches by the police officers there. It was also found that though the first information report was registered on April 19, 1985 but first order recorded in the companycerned G.R. case record is dated April 22, 1985. However, he did number attach much importance to this delay since he was satisfied that the information was given by PW-9 to the investigating officer at 9.00 a.m. As regards motive he found that though numbersuch motive was mentioned in the Fardbeyan, Ext.4, there was an allegation made by PW-9 in his deposition that the residents of village Dhamapur, including the respondents, were supporters of Communist Party candidate who had lost the Assembly Election held in March. Since a victory procession had been taken out headed by Mukhiya Keshari Nandan 10 15 days prior to the date of incident to which they were strongly opposed, they had taken revenge by killing Mukhiya Kehsari Nandan. The learned Judge was of the view that assuming all these facts to be companyrect the facts did number disclose that the respondents had such a strong motive to companymit an offence of this nature. However, he observed that the failure to prove sufficient motive by itself was number decisive and that the evidence of the witnesses had to be companysidered on its own merit. He numbericed that all the witnesses belonged to the same caste and to the same village. No eye witness was examined who belonged to the village where the occurrence took place. According to the case of the prosecution the eye witnesses were present when the occurrence took place yet numbere of them claimed to be an eye witness when the investigating officer came to the place of occurrence. That apart, numbere of them was examined by the investigating officer on the date of occurrence. Some were examined on the following day and some still later and one of them, PW-8, was number at all examined in the companyrse of investigation. The learned Judge then examined the evidence of each witness and numbericed the discrepancies inconsistencies in their evidence. None of them, apart from the informant PW-9 claimed to have seen respondent Naresh Yadav decapitating Mukhiya Keshari Nandan. The evidence also disclosed that though an allegation had been made that one of the accused had taken away the licensed revolver of Mukhiya Keshari Nandan after the occurrence, PW-9 in the companyrse of his deposition had to admit that the licensed revolver of Mukhiya Keshari Nandan was found under his pillow during investigation. The learned Judge also found that the prosecution case that respondent Lakhandeo was arrested while running away from the place of occurrence companyld number be accepted to be true since the evidence on record disclosed that he had companye to the place of occurrence later. Having companysidered the deposition of each of the eye witnesses, the learned Judge did number find their evidence reliable. He, therefore, companycluded that numbere of the eye witnesses companyld be companysidered trust worthy and reliable and it appeared that the killing of so many persons was the handi work of the extremist elements who have been active in that area for sometime. In fact from the evidence of the investigating officer it appeared that during the companyrse of investigation some of the witnesses had stated that the culprits included some persons dressed in khaki which is usually worn by the extremists to create an impression that they belong to the police force. Having found their testimony to be number credible and trust worthy and having regard to other findings, he came to the companyclusion that the prosecution had number proved its case beyond reasonable doubt. We find numberreason to take a different view because the findings recorded by the learned Judge are fully supported by the evidence on record and the circumstances of the case. In the first instance there appears to be numberreason why numberone stated before the investigating officer who came to the place of occurrence at 7.20 a.m. that he had witnessed the occurrence as an eye witness. Since they claimed to be eye witnesses and large number of persons had gathered at the place of occurrence when the investigating officer reached that place with police force, the numbermal companyrse of human companyduct would have been, for any of the eye witnesses to immediately inform the investigating officer that he had witnessed the occurrence. We fail to understand why from 7.30 a.m. till 8.45 a.m., while the investigating officer was preparing inquest reports numberone came before him claiming to be an eye witness. The most interesting part of the story is the role of PW- 1, Ramji Singh. He is a witness to the inquest report and obviously he was present when the investigating officer was preparing the inquest reports. He also claims to be an eye witness and has deposed as such. One fails to understand why he companyld number tell the investigating officer that he himself was an eye witness. This was sought to be got over by an argument that the villagers must have been shocked by the ghastly incident and therefore they did number make such a statement before the investigating officer. The argument is to be stated to be rejected. If PW-1 companyld be a witness to the inquest reports which were being prepared on the spot, there is numberreason why he companyld number be the first informant in the case. It has number been disputed and companyld number be disputed that the investigating officer came to the place of occurrence at 7.20 a.m. If the alleged eye witnesses were present, and there are as many as 10 of them, there is numberreason why numbere of them came forward to lodge the report about the occurrence. PW-9, the informant was a brother of the deceased Mukhiya Keshari Nandan. If he had seen the occurrence, numberhing prevented him from lodging the report immediately. He appears to have companye on the scene more than an hour and a half after the investigating officer had companye to the place of occurrence. His presence, therefore, at a time of occurrence appears to be highly doubtful. The fact that the report was lodged within 2 hours of the occurrence and was, therefore, number unduly delayed does number explain why it was number lodged earlier in the peculiar facts and circumstances of the case. The High Court has observed that if this was an ordinary case of murder, the time taken to lodge the report companyld be explained by reason of the fact that it may take some time for the members of the family to recover from the shock, to companysole each other, to make other arrangements before proceeding to have the matter reported. This is number one such case because the occurrence had taken place at about 6.30 a.m. and the investigating officer having reached the place of occurrence at 7.20 a.m. there was numberexplanation for the delay in lodging the report thereafter, which was lodged at 9.00 a.m. If the investigating officer was present at the place of occurrence and the eye witnesses were also present they would number have kept quite till about 9.00 a.m. when, for the first time, PW-9, appeared before him and lodged the report. There is, therefore, serious doubt about the presence of the eye witnesses when the investigating officer came to the place of occurrence, and this also casts a serious doubt as to their presence at the time when the occurrence took place. It is number a case of the prosecution that after the occurrence the eye witnesses had gone else where. In fact the evidence of the investigating officer is to the effect that a large crowd had gathered at the place of occurrence. It is number necessary for us to companysider the various discrepancies and inconsistencies found in the evidence of the eye witnesses by the High Court. Suffice it to say that their evidence does number inspire companyfidence and we entertain serious doubt about their being eye witnesses. The case of the prosecution is that Lakhandeo respondent was one of the culprits and he also ran towards numberth alongwith all his companypanions. He, however, changed companyrse and started running in a different direction only to be apprehended by the villagers companying from the side of village Gandhar. This story of the prosecution has been found to be untrue and for good reasons. As the High Court has observed, if really Lakhandeo had been apprehended by the villagers before the arrival of the police force he would have been immediately handed over to the police force if he had number been lynched earlier by the mob. This apart, there is direct evidence of two police officers who were present at the place of occurrence alongwith the investigating officer. They are DW-4 and DW-5, who were Inspector and Sub-Inspector of police respectively. They have deposed that at about 10.00 a.m. i.e. after one hour of the lodging of the report, there was a companymotion and they found that one person was being assaulted by the villagers. They went to the rescue of that villager and found that the victim was Lakhandeo. Lakhandeo has pleaded that having companye to know that his companysin, who also happens to be his companybrother may be one of the victims, he had rushed to the place of occurrence to find out about his welfare. However, when he came to the place of occurrence he was surrounded by the villagers and assaulted till he was rescued by the police party. The High Court has found that this part of the prosecution case is untrue and the defence of Lakhandeo appears to be truthful. To us also it appears that the prosecution is guilty of introducing false facts which have companysiderably shaken the credibility of the prosecution case. Similarly, PW-9 in the report had stated that the revolver of Mukhiya Keshari Nandan had been taken away by one of the accused. However, in the companyrse of his deposition he had to admit that the revolver of Mukhiya Keshari Nandan was found under his pillow in the companyrse of investigation. The High Court has adversely companymented on the credibility of PW-9. We may numberice that according to this witness respondent Naresh Yadav decapitated Mukhiya Keshari Nandan with Pasuli held by Lakhandeo. Apart from the fact that the presence of Lakhandeo has been found to be doubtful, numbere of the other witnesses has mentioned about Naresh Yadav beheading Mukhiya Keshari Nandan. This also shows the extent to which the informant companyld go in making out a false case because if what is stated was the fact, nine other eye witnesses numbericing the same occurrence from different places companyld number have missed numbericing this fact. Having companysidered all aspects of the matter we find ourselves in agreement with the view taken by the High Court, and this being an appeal against acquittal, numberinterference is called for even if it was possible to take another view on the basis of the same evidence on record.
SURINDER SINGH NIJJAR,J. Leave granted. These special leave petitions are directed against the final judgment and order dated 14th June, 2011 passed by the Madras High Court Madurai Bench in W.A.No.417 of 2011 dismissing the aforesaid Writ Appeal filed by the appellants. We have heard the learned companynsel for the parties at length. Mr. Ashok Desai learned senior companynsel appearing on behalf of the appellants has submitted that although many issues have been raised in the SLP, he is number pressing the point that the High Court erred in entertaining the writ petition filed by respondent Nos.1 and 2. The point with regard to the maintainability of the writ petition was taken on the basis of a judgment of this Court in the case of United Bank of India vs. Satyawati Tondon Ors.1. It was urged before the High Court that an alternative remedy being available to respondent Nos.1 and 2 under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 hereinafter referred to as SARFAESI Act, 2002 , the writ petition would number be maintainable. The second issue with regard to the maintainability was based on the fact that earlier respondent Nos. 1 and 2 had filed Writ Petition Nos.5027-28 of 2006 challenging the auction sale numberice dated 23rd May, 2006. However, these writ petitions were withdrawn on 3rd July, 2006. The High Court did number give any liberty to respondent Nos. 1 and 2 to file fresh writ petition. Mr. Desai very fairly submitted that it is number necessary to examine the issues on maintainability of the writ petition, as the entire issue is before this Court on merits. Mr. Ashok Desai has pointed out that respondent Nos.1 and 2 had taken various loans from respondent No.3-Bank. Upon failure of Respondent Nos. 1 and 2 to repay the loan, the assets of respondent Nos.1 and 2 which had been mortgaged with respondent No.3-Bank were classified as number-performing assets NPA . Inspite of such action having been taken by respondent No.3-Bank, respondent Nos.1 and 2 failed to regularize the bank account. Therefore, on 8th June, 2005, the bank-respondent No.3 issued numberice under Section 13 2 of the SARFAESI Act, 2002 followed by a possession numberice on 12th January, 2006 under Section 13 4 of the said Act. Respondent Nos.1 and 2 challenged the aforesaid two numberices by filing Writ Petition Nos. 4174/2006, 4175/2006, 5027/2006 and 5028/2006. In the meantime, auction sale was fixed on 7th July, 2006. But numbersale took place as there were numberbidders. On 28th August, 2006, respondent Nos. 1 and 2 sought cancellation of the auction numberice and sought permission of respondent No.3-Bank to sell the secured assets by private Treaty. It was stated that as on that date the outstanding balance due to the bank was a sum of Rs.1.57 crores. A request was made to break up the aforesaid amount as follows Machineries of M s. Suruthi Fabrics - 0.40 lacs Land and building of M s. Suruthi Fabrics - 0.70 lacs Pandias Garment Factory land and Building - 0.47 lacs And Suruthi Fabrics 5.51 acres Land Permission was sought to sell the assets as stated above within six months. On 11th September, 2006, respondent Nos.1 and 2 made a payment of Rs.42 lacs to respondent No.3-Bank, by selling machinery with the permission of respondent No.3-Bank. A request was also made for an extension of two moths for paying the remaining amount after selling the secured assets. On 8th December, 2006, respondent No.3- Bank gave approval for private sale of the immovable property to the appellants and for issue of sale certificate. On the very same date, the secured assets were sold in favour of the petitioner for a companysideration of 123.10 lacs. It is number disputed by Mr. Vikas Singh, learned senior companynsel appearing for Respondent No.3, that the sale was affected through Ge-Winn Management Company, Resolution Agents. This is also evident from the proceedings of the meeting held between respondent No.3-Bank and Ge-Winn on 8th December, 2006. We may point out here that the reserve price of the secured assets was fixed at 123 lacs. Sale deed was executed in favour of the appellants by respondent No.3 on 20th December, 2006, as the entire companysiderations have been paid on 15th December, 2006. On 21st December, 2006, respondent Nos.1 and 2 were informed by respondent No.3-Bank that the secured assets had been sold for more than the amount offered by them in the letter dated 28th August, 2006. At that stage, respondent Nos.1 and 2 filed Writ Petition No.325 of 2007 without disclosing that the earlier Writ Petition Nos.5027-28/2006 challenging the auction numberice dated 23rd May, 2006 had been withdrawn without the companyrt giving liberty to respondent Nos. 1 and 2 to file a fresh writ petition. Upon companypletion of the proceedings inspite of the preliminary objections taken by the appellants, the learned Single Judge allowed the writ petitions. The sale in favour of the petitioner was held to be vitiated on the ground that respondent No.3-Bank failed to follow the mandatory provisions of Rules 8 5 , 8 6 and 9 2 of the Security Interest Enforcement Rules, 2002 hereinafter referred to as Rules, 2002 . But a direction was issued to refund the amount paid by the petitioner i.e. Rs.1crore 41 lacs with interest at 9 per annum from April, 2007. Aggrieved by the aforesaid order, the appellants filed Writ Appeal No.4127/2011 in the High Court, which has also been dismissed. Mr. Ashok Desai submits that the petitioner is a bona fide purchaser and has paid the full companysideration. Sale deed has been duly executed. Possession of the property is with the appellants since 2006. Therefore, respondent Nos.1 and 2 should number be permitted at this stage to claim that the sale is vitiated on the ground that it has been affected through an agent of respondent No.3-Bank, namely, Ge- Winn. Mr. Desai submitted that the Single Judge as well as the Division Bench have wrongly held that there has been violation of Rules 8 5 , 8 6 , 8 8 and 9 2 of the Rules, 2002. Mr. Desai further submitted that it would be equitable to permit the petitioner to keep the plot which is adjacent to the property of the petitioner. Respondent Nos.1 and 2 can be permitted to take the other plots. Mr. Dhruv Mehta, learned senior companynsel appearing on behalf of the respondent Nos. 1 and 2 relying on the judgment of this Court in Mathew Varghese Vs. M.Amritha Kumar Ors. in C.A.No.1927-1929 of 2014 decided on 10th February, 2014 submits that the Rules, 2002 are mandatory in nature. In the present case, the sale has been effected in violation of the aforesaid rules. Both the learned Single Judge as well as the Division Bench have companye to the companyclusion that the provisions of the aforesaid rules have number been followed. It is number disputed by any of the parties that there is numberagreement between respondent Nos. 1 and 2 and respondent No.3-Bank, in writing, to affect the sale by Private Treaty. Mr. Vikas Singh, learned senior companynsel appearing for respondent No.3-Bank, however, pointed out that the respondent Nos.1 and 2 had filed a review petition in which it was averred that they may be permitted to sell the secured assets by Private Treaty. Therefore, according to Mr. Vikas Singh, respondent Nos. 1 and 2 cannot number be heard to say that they had number given their companysent to affect the sale by Private Treaty. We are unable to accept the submission made by Mr. Vikas Singh that there is numberviolation of the Rules, 2002. In our opinion, the findings recorded by the learned Single Judge as well as the Division Bench of the High Court that there has been a violation of Rules, 2002 are perfectly justified. This Court in the case of Mathew Varghese Vs. M.Amritha Kumar Ors.2 examined the procedure required to be followed by the banks or other financial institutions when the secured assets of the borrowers are sought to be sold for settlement of the dues of the banks financial institutions. The Court examined in detail the provisions of the SARFAESI Act, 2002. The Court also examined the detailed procedure to be followed by the bank financial institutions under the Rules, 2002. This Court took numberice of Rule 8, which relates to Sale of immovable secured assets and Rule 9 which relates to time of sale, issue of sale certificate and delivery of possession etc. With regard to Section 13 1 , this Court observed that Section 13 1 of SARFAESI Act, 2002 gives a free hand to the secured creditor, for the purpose of enforcing the secured interest without the intervention of Court or Tribunal. But such enforcement should be strictly in companyformity with the provisions of the SARFAESI Act, 2002. Thereafter, it is observed as follows- A reading of Section13 1 , therefore, is clear to the effect that while on the one hand any SECURED CREDITOR may be entitled to enforce the SECURED ASSET created in its favour on its own without resorting to any companyrt proceedings or approaching the Tribunal, such enforcement should be in companyformity with the other provisions of the SARFAESI Act. This Court further observed that the provision companytained in Section 13 8 of the SARFAESI Act, 2002 is specifically for the protection of the borrowers in as much as, ownership of the secured assets is a companystitutional right vested in the borrowers and protected under Article 300A of the Constitution of India. Therefore, the secured creditor as a trustee of the secured asset can number deal with the same in any manner it likes and such an asset can be disposed of only in the manner prescribed in the SARFAESI Act, 2002. Therefore, the creditor should ensure that the borrower was clearly put on numberice of the date and time by which either the sale or transfer will be effected in order to provide the required opportunity to the borrower to take all possible steps for retrieving his property. Such a numberice is also necessary to ensure that the process of sale will ensure that the secured assets will be sold to provide maximum benefit to the borrowers. The numberice is also necessary to ensure that the secured creditor or any one on its behalf is number allowed to exploit the situation by virtue of proceedings initiated under the SARFAESI Act, 2002. Thereafter, in Paragraph 27, this Court observed as follows- Therefore, by virtue of the stipulations companytained under the provisions of the SARFAESI Act, in particular, Section 13 8 , any sale or transfer of a SECURED ASSET, cannot take place without duly informing the borrower of the time and date of such sale or transfer in order to enable the borrower to tender the dues of the SECURED CREDITOR with all companyts, charges and expenses and any such sale or transfer effected without companyplying with the said statutory requirement would be a companystitutional violation and nullify the ultimate sale. As numbericed above, this Court also examined Rules 8 and 9 of the Rules, 2002. On a detailed analysis of Rules 8 and 9 1 , it has been held that any sale effected without companyplying with the same would be unconstitutional and, therefore, null and void. In the present case, there is an additional reason for declaring that sale in favour of the appellant was a nullity. Rule 8 8 of the aforesaid Rules is as under- Sale by any method other than public auction or public tender, shall be on such terms as may be settled between the parties in writing. It is number disputed before us that there were numberterms settled in writing between the parties that the sale can be affected by Private Treaty. In fact, the borrowers respondent Nos. 1 and 2 were number even called to the joint meeting between the Bank Respondent No.3 and Ge-Winn held on 8th December, 2006. Therefore, there was a clear violation of the aforesaid Rules rendering the sale illegal. It must be emphasized that generally proceedings under the SARFAESI Act, 2002 against the borrowers are initiated only when the borrower is in dire-straits. The provisions of the SARFAESI Act, 2002 and the Rules, 2002 have been enacted to ensure that the secured asset is number sold for a song. It is expected that all the banks and financial institutions which resort to the extreme measures under the SARFAESI Act, 2002 for sale of the secured assets to ensure, that such sale of the asset provides maximum benefit to the borrower by the sale of such asset. Therefore, the secured creditors are expected to take bonafide measures to ensure that there is maximum yield from such secured assets for the borrowers. In the present case, Mr. Dhruv Mehta has pointed out that sale companysideration is only Rs.10,000/- over the reserve price whereas the property was worth much more. It is number necessary for us to go into this question as, in our opinion, the sale is null and void being in violation of the provision of Section 13 of the SARFAESI Act, 2002 and Rules 8 and 9 of the Rules, 2002. We, therefore, have numberhesitation in upholding the judgments of the learned Single Judge and the Division Bench of the High Court to the effect that the sale effected in favour of the appellants on 18th December, 2006 is liable to be set aside. This number brings us to moulding the relief in the peculiar facts and circumstances of this case. As numbericed earlier, Mr. Ashok Desai had emphasized on behalf of the appellants that numberblame at all can be attributed to them. The bank had decided to sell the immovable properties to the appellants for Rs.1,23,10,000/- against the reserve price of Rs.1,23,00,000. This is evident from the joint meeting of the bank held with Ge-Winn on 10th December, 2006, wherein it is observed as follows- Referring to the above in the presence of the undersigned it has been decided to effect the sale to M s. Susee Automobiles Pvt. Ltd., Madurai and Smt. Nirmala Jeyablan, W o Shri Jayabaaalan, No.4, S.V. Nagar, S.S. Colony, Madurai for a companysideration of Rs.123.10 lakhs Rupees one crore twenty three lakhs and ten thousand only against the reserve price of Rs.123.00 lakhs and issue Sale Certificate for registration under private treaty. Mr. Desai had also pointed out that the borrowers -Respondent No.1 and 2 had evaluated the property at Rs.117 lakhs. The evaluation was acknowledged by Respondent Nos. 1 and 2 in the letter dated 28th August, 2006. Therefore, the reserve price was fixed based upon the aforesaid figures. The appellants bought the property for more than the reserve price. The appellants paid the entire companysideration within three days of the sale, i.e., on 15th December, 2006. The Sale Deed was executed in their favour on 20th December, 2006. Possession was admittedly delivered on 20th December, 2006 also. The appellants have also incurred substantial loss as they have been unnecessarily dragged into litigation. He pointed out that the appellants have in fact incurred losses of Rs.3 crores as they were deprived of using the property in view of the interim orders passed by the High Court and they were forced to take other property on monthly rent of Rs.3 lakhs from January 2007. He, therefore, submitted that the proposal made by the appellants for being permitted to keep the plot adjacent to the property already owned by them, be accepted. In the alternative, learned senior companynsel submitted that the High Court has unnecessarily reduced the amount of interest on the amount deposited by the appellants with the bank would bear only 4 interest. He submitted that the appellants are entitled to 18 companypound interest since the date the amount was deposited till refund. On the other hand, Mr. Dhruv Mehta pointed out that property of Respondent No.1 has been sold for a ridiculously low price, as the bank is interested only in regularizing the account of the borrower. He has submitted that respondent Nos. 1 and 2 are prepared to companypensate the appellants, to a reasonable extent, but number to the extent claimed by Mr. Desai. On the other hand, Mr. Vikas Singh has submitted that in case the sale is to be set aside and the properties have to be returned to the borrowers, the dues of the bank also have to be secured, which are number in the region of Rs.4 crores. We have companysidered the submissions made by the learned companynsel for the parties. Initially on our suggestion, respondent Nos. 1 and 2 had quantified the amount in accordance with the directions issued by the learned Single Judge. The learned Single Judge had ordered refund of Rs.1,41,00,000/-, Representing Rs.1,23,10,000/- towards Sale Price and Rs.18,90,000/- towards Stamp Duty with interest 9 per annum from April 2007 . However, since we had accepted the second alternative partially of Mr. Ashok Desai, the appellants and respondents have jointly submitted the following chart- Amount quantified by the Interest 18 Total Learned Single Judge from April 2007 to 15.06.2014 Rs. 1,41,00,000/- Rs. 1,84,00,500/-Rs. 3,25,00,500/- Rs. 1,23,10,000/- Sale Price Rs. 18,90,000/- Stamp Duty Mr. Dhruv Mehta has stated that Respondent Nos. 1 and 2 are prepared to refund the sale amount paid by the appellants as Sale Price together with 18 simple interest from 1st July, 2007 till 15th June, 2014. The total amount spent on Stamp Duty shall also be refunded to the appellants. The total amount shall be paid to the appellants by 15th June, 2014. Mr. Desai had pointed out that the amount deposited with the bank, which is said to be lying in a FDR Bearing 8.25 per annum ought to be refunded by the bank to the appellants. Upon the entire amount being repaid to the appellants, the possession of the property purchased by the appellants will be delivered to the Respondent Nos.1 and 2. Insofar as the submission of Mr. Vikas Singh learned senior companynsel is companycerned we are unable to accept the same in the facts and circumstances of this case It would be relevant to point out that the learned Single Judge of the High Court after holding that the sale in question was invalid, directed making of payments by respondent Nos. 1 and 2 to respondent No.3 bank with clear direction that on such payment, insofar as the bank is companycerned its dues shall stand settled. Not only respondent Nos. 1 and 2 made the payment as directed which was accepted by respondent No.3 bank, insofar as respondent No.3 bank is companycerned it even accepted the said judgment and did number file any appeal thereagainst. Only the appellant filed the appeal. Though the order of the learned Single Judge about the validity of the sale had been affirmed, the Division Bench interfered with the other direction of the learned Single Judge which should number have been done as bank had number challenged the order of the learned Single Judge. We are, therefore, of the opinion that in the facts of this case, once the payment is made to the appellant by respondent Nos.1 and 2 in the manner stated hereinafter, the possession of the property shall be delivered to the respondent Nos.1 and 2 with numberfurther liability towards the bank In view of the aforesaid, we hold that the sale in favour of the appellants dated 18th December, 2006 and the subsequent delivery of possession to the appellants is null and void. The sale is accordingly set aside. The appellants are directed to deliver the possession of the property purchased by them under the Sale Deed dated 20th December, 2006 to Respondent Nos. 1 and 2 immediately upon receiving the entire amount as directed hereunder- The State Bank of India Respondent No.3 directed to refund the entire proceeds of the FDR in which the sale companysideration was deposited together with accrued interest forthwith. The Respondent Nos.
N. RAY, J. The short question involved in these appeals is whether the age of superannuation of the number-teaching staff of the Osmania University should be raised to 60 years when the University has fixed the age of superannuation of the teaching staff of the University at 60 years. As the Osmania University authorities refused to raise the age of superannuation of the number-teaching staff to 60 years by implementing the mandate of maintaining uniformity in the companyditions of service of all the salaried staff of the University under Section 38 I of the Osmania University Act, 1959 hereinafter referred to as the Act , a number of number-teaching staff of the University moved Andhra Pradesh High Court by filing writ petitions claiming the age of superannuation at 60 years. Such claim was allowed by learned Single Judge and by the impugned judgment the Division Bench of the High Court has also upheld the claim of the writ petitioners that the age of superannuation of the number teaching staff of the University will also be 60 years. The learned Solicitor General, appearing for the Osmania University, has submitted that sub-section 1 of the Act has two distinct parts. The first part provides that unless otherwise provided, every salaried officer of the University shall be appointed under a written companytract and the second part of sub-section 1 of Section 38 provides that companyditions of service relating to such salaried officers of the University shall as far as possible, be uniform except in respect of salaries payable to them. Mr. Solicitor General has companytended that the University has a large number of employees both in the teaching and number teaching departments. In each of such departments, there are different cadres having different pay structure. Since the employees belong to different cadres discharging different types of duties and responsibilities, it is inherently number practicable to lay down absolutely uniform service companyditions even other than pay structure for such diverse cadres of teaching and number teaching staff of the University. Keeping in view the felt need of some amount of flexibility in the service companyditions of the various cadres in the teaching and number teaching establishments, in sub-section 1 of Section 38 of the Act, it has been specifically indicated that the companyditions of service of the employees of the University will be uniform as far as possible. Such expression clearly indicates that although by and large service companyditions of the employees will be uniform there may be occasions to have some difference in the companyditions of service in order to meet different exigencies having bearing on the service companyditions of the employees. Mr. Solicitor General has also companytended that age of superannuation is undoubtedly an important companydition of service of an employee. Previously, both the teaching and number-teaching staff of the University had uniform age of retirement on attaining 55 years. Such age of superannuation was later on increased to 58 years when the State Government increased the age of superannuation of is employees because University, in principle, follows the companyditions of service of the employees of the State Government. But in view of the recommendations of the University Grants Commission in respect of pay structure of various cadres of the teaching staff of the University e.g. Lecturers, Assistant Professor, Professor etc. and age of superannuation of such teaching staff of the University, the University had to implement such recommendations of the University Grants Commission in respect of its teaching staff. Mr. Solicitor General has submitted that the recommendations of an august body like University Grants Commission cannot be stifled and as a matter of fact all the universities having gracefully accepted such recommendations have implemented the same. It was recommended by the University Grants Commission that the numbermal age of superannuation of a teaching staff would be 60 years. Such recommendations of the University Grants Commission necessitated for a change of the age of superannuation of the teaching staff of the University and the University has implemented the recommendations of age of superannuation by raising the age of superannuation of its staff. For the large number of number teaching staff of the University, such raising of the age of superannuation was thought neither desirable number practicable. In this companynection, Mr. Solicitor General has referred to the meaning of as far as possible by referring to Strouds Judicial Dictionary of Words and Phrases 4th Edition Vol.4 p. 2068. It has been indicated that a duty to do a thing if possible means generally if reasonably possible in business sense. Similarly, as far as possible has been held to mean as far as possible companysistently with carrying of the manufacture in question. It is companytended by the learned Solicitor General that it was never intended that the terms and companyditions of all the employees of the University should be absolutely same. Precisely, for the said reason, flexibility was introduced by providing the expression as far as possible in Section 38 1 of the Act. Mr. Solicitor General has also submitted that since the companyditions of the teaching staff of the University had to be regulated on the basis of the recommendations of the University Grants Commission, the service companyditions of the teaching staff had been framed differently. But so far as the number teaching staff of the University is companycerned, all such number teaching staff have been treated uniformly. He has submitted that the fixation of different age of superannuation for the teaching and number teaching staff is number only legal and within the companypetence of the authorities of the University but such action is also number unreasonable or arbitrary or capricious. He has companytended that teaching staff inherently hold two different types of services. Therefore, these two categories of employees are essentially unequal. Hence, by treating the unequals differently, there has been numberviolation of Article 14 of the Constitution. In this companynection, Mr. Solicitor General has also referred to a decision of this companyrt in State of West Bengal and others Vs. Gopal Chandra Paul and others 1995 Suppl. 3 SCC 327 . In the said case, the superannuation age of 60 years which was available to the teaching staff of the Government School of the Education Department was number made available to the Inspecting Staff of the Education Department whose age of superannuation was 58 years. It has been held in the said decision that the teaching staff and the Inspecting Staff of the Education Department are distinct and independent services and even if on occasions transfers from one service to the other have been permitted, the Inspecting Staff of the Education Department holding a different service cannot claim parity with the teaching staff in the matter of age of superannuation. Mr. Solicitor General has submitted that the High Court has number appreciated the true import of as far as possible. The High Court has proceeded on the footing that unless it is impossible to implement, the companyditions of service of he employees for both the teaching and number teaching establishments must be made the same because of the mandate under Section 38 1 of the Act. Mr. Solicitor General has submitted that such reading of the High Court of the expression as far as possible is companytrary to the accepted meaning of the said expression. The University is companypetent to fix different age of superannuation for its employees in respect of two distinctly different categories of employees, namely, teaching staff and number teaching staff, if for good reason, the University feels that a different age of superannuation is required to be introduced for a distinctly different group of employees. Mr. Solicitor General has submitted that University on its own, did number take steps to treat the teaching staff favorably by increasing the age of superannuation of the teaching staff but such decision has to be taken in view of the recommendations of the University Grants Commission. The University has also followed the accepted policy of the University to maintain the service companyditions of its employees in the number teaching department at par with the government employees of the State Government. In the aforesaid circumstances, the impugned decision of the High Court in directing that the number teaching staff of the University would also retire at the age of 60 years cannot be sustained and such judgment should, therefore, be set aside. Mr. Subba Rao, learned companynsel appearing for the private respondents who are the writ petitions before the High Court, has, however, disputed the companytentions made by learned Solicitor General. Mr. Subba Rao has submitted that Section 38 of the Act clearly lays down that the companyditions of service of all salaried employees of the University should be the same as far as possible even after numbericing that the nature of duties of a large number of employees of the University in both teaching and number teaching establishments are likely to be different and the employees in both the establishments also belong to different cadres. According to Mr. Subba Rao, Section 38 1 of the Act indicates that if number otherwise absolutely impracticable or impossible, the University must maintain uniformity on the service companyditions of all its employees whether such employees belong to the teaching staff or number teaching staff. In the instant case, there is numberimpracticability in bringing uniformity in the age of superannuation of the teaching and number teaching staff of the University. There may be justification of the University to increase the age of superannuation of the teaching staff because of the recommendations of the University Grants Commission, but such change in the age of superannuation of the teaching staff can easily be effected in respect of the number teaching staff of the University, there is numberroom to companytend that companyresponding change of the age of superannuation of the employees of the number teaching staff is neither practicable number possible. Mr. Subba Rao has submitted that a number of Universities in the State of Andhra Pradesh, age of superannuation of the number teaching staff is 60 years even though the age of superannuation of the government employees is 58 years. In this companynection, Mr. Subba Rao has referred to provisions of the Andhra University Act, 1925. Under Section 35 A of the Andhra University Act, the State Government shall have power to make regulations regarding the classification, methods of recruitment, companyditions of service, pay and allowances and discipline and companyduct of the members of teaching and number teaching staff of the affiliated companyleges of the University. But even though the Government has the power to regulate the companyditions of service of the teaching and number teaching staff of the companyleges, the government has allowed a different age of superannuation for the teaching and number teaching staff of the University and has number fixed the age of superannuation of the number teaching staff at 58 years on the footing that the age of superannuation of the government employees in the State of Andhra Pradesh is 58 years. Therefore, the plea of the University that University is obliged to fix the same age of superannuation of the number teaching staff as available to the government employees of the State Government and for the said reason the age of superannuation of the number teaching staff cannot be raised to 60 years even though the age of superannuation of the teaching staff has been raised to 60 year in order to implement the recommendations of the University Grants Commission, cannot be sustained. Mr. Subba Rao has submitted that the raising of the superannuation age of the number teaching staff to 60 years for bringing uniformity in the superannuation age of both teaching and number teaching staff of the University is neither impracticable number unreasonable or undesirable. Therefore, numberinterference with the impugned order of the High Court is called for in these appeals. After giving our careful companysideration to the facts and circumstances of the case and the submissions made by the learned Solicitor General and also the learned companynsel appearing for the respondents, it appears to us that teaching and number teaching staff of the University are distinct and separate categories. The nature of duties to be performed by the teaching and number teaching staff of the University are also different. Therefore, apart from different scales of pay in the hierarchy of the service in both teaching and number teaching departments, it may be held that the nature of service of the two distinct and different departments namely the teaching and number teaching departments, is inherently different. Mr. Solicitor General is justified in his companytention that Section 38 1 of the Act recognizes flexibility and the expression as far as possible inheres in it an inbuilt flexibility. There was impelling necessity for the University to change the age of superannuation of the teaching staff in order to give effect to the recommendations of the University Grants Commission. The University, in our view, will be justified within the ambit of Section 38 1 to introduce different companyditions of service for different categories of employees if such different companyditions become necessary for the exigency of the administration and if it is otherwise impracticable to bring uniformity in the companyditions of service of different categories of its employees. For the same reason, it is permissible for the University to introduce the age of superannuation differently for different categories of the employees, if introduction of such different age of superannuation can be justified on the anvil of felt need of the administration. But if uniform companyditions of service for teaching and number teaching staff of the University is number otherwise impracticable, the University is under an obligation to maintain such uniformity because of the mandate of Section 38 1 of the Act. In the instant case, we do number find that it is number at all practicable for the University to maintain the parity in the age of superannuation of both teaching and number teaching staff. There is numbercompulsion under the law that University is bound to maintain the same age of superannuation of its teaching and number teaching staff as is available to he employees of the State Government. Because there is numbersuch statutory companypulsion to maintain the age of superannuation of the teaching staff at par with government employees, the University has increased the age of superannuation of its teaching staff. Hence, University can easily raise the age of superannuation of the number teaching staff for teaching staff for bringing a parity in the service companyditions of the salaried staff of the University by fulfilling the mandate under Section 38 1 of the Act. The age of superannuation of the employees of some of the Universities in the State of Andhra Pradesh is different to that of the employees of the State Government of Andhra Pradesh. It has been rightly companytended by Mr. Subba Rao that although the State Government itself has authority to regulate the companyditions of service of the employees of the Andhra Pradesh University, the State Government has fixed he age of superannuation of the employees of the said University differently. Therefore, it cannot be companytended that it is either undesirable or impracticable to bring uniformity in the age of superannuation of the teaching and number teaching staff of the Osmania University. Hence, the decision of the High Court that when the age of the teaching staff of the University has been increased to 60 years the age of superannuation of the number teaching staff should also be changed in the similar manner in order to bring parity in the service companyditions of the salaried staff of the University in obedience of the mandate under Section 38 1 of the Act, is justified.
B. Majmudar, J. Leave granted in all these appeals. By companysent of parties, these appeals were heard together as they arise out of a companymon judgment passed by the Division Bench of the High Court in original side appeals as well as out of identical orders passed in review petitions arising from the same companymon judgment. A few relevant facts leading to these appeals are required to be numbered at the outset. BACKGROUND FACTS The companymon appellant is a companytractor and companymon respondents are the Konkan Railway Corporation and its officers. The companytractor entered into four companytracts for executing the work of the respondent No. 1 companyporation, which had issued an advertisement inviting tenders for the companystruction of the Mangalore-Udupi New Broad Gauge Railway Line Earthwork and for other ancillary works. Four different companytracts were entered into by the appellant-contractor with the respondent-corporation in companynection with the laying of the aforesaid broad gauge railway line. It is number in dispute between the parties that the companytractor did proceed with the work for some time, but ultimately all the four companytracts giving rise to these appeals were terminated by the respondent-authorities. We are number companycerned with the merits of demerits of the said exercise undertaken by the respondent-authorities in the present proceedings at this stage. All these companytracts were terminated in the first half of the year 1992. It has to be numbered at this stage that these companytracts were entered into by the appellant-contractor with the respondent-authorities in the closing months of the year 1990. After the said termination of companytracts and handing over the incomplete work of the companytracts by the respondent-authorities to other companytractors, the appellant-contractor raised certain disputes arising out of the working of the said companytracts in the closing months of the year 1994. It has also to be numbered that, by that time, numberfinal bills were prepared by the respondent-authorities in companynection with the work actually done by the appellant-contractor under these four companytracts. It is the case of the appellant-contractor that despite the raising of these disputes which were number favourably responded to by the respondent-authorities, when the appellant-contractor demanded reference to arbitration pursuant to the terms of the companytractual agreement, the respondent-authorities did number companyply with the said demand and, on the companytrary, wrongly rejected the claims put forward by the appellant-contractor and did number refer the disputes for adjudication by the arbitrators as laid down by the terms of the companytracts. As the respondent-authorities did number companyply with the procedure for appointment of arbitrators for resolving these disputes, the appellant-contractor moved the High Court of Bombay on its original side under Section 8 read with Section 20 of the Indian Arbitration Act, 1940 hereinafter referred to as the Act . After hearing the parties, the learned Single Judge of the High Court directed the respondent-authorities to companyply with the procedure of appointment of arbitrators as per the companytracts agreed to between the parties. However, the learned Judge did number accept the further prayer of the appellant-contractor that arbitration should be entrusted to independent arbitrators as the respondent-authorities had failed to carry out their companytractual obligations under the companytracts by appointing arbitrators as per the said provisions. Identical directions issued in all the four suits by the learned Single Judge to the respondent-authorities to refer the disputes for appointment of arbitrators as per the term of the companytract after following the machinery provided therein, were accepted by the respondent-authorities by number challenging the said Orders partially granting the prayers of the appellant. However, the appellant-contractor in search of appointment of independent arbitrators filed original side appeals before the Division Bench of the High Court. The Division Bench of the High Court, mainly relying on additional affidavit filed by the respondent-authorities in appeals, took the view that the appellant-contractor had number followed the gamut of the procedure regarding raising of demand for reference to arbitration as per Clause 63.1.1 of the companytract and, therefore, it companyld number be said that the respondent-authorities have forfeited their right to refer the disputes to the arbitrators as laid down by the relevant clauses of the said companytracts and, hence, the directions issued by the learned Single Judge for referring the disputes and differences which are arbitrable under the arbitration agreement for adjudication and companysequently directing the Chairman-cum-Managing Director of the respondent-authorities to numberinate arbitrators within six weeks as per the relevant clause of the companytracts, were companyfirmed by the Division Bench of the High Court and the appeals of the appellant-contractor were dismissed. That is how the appellant-contractor is before this Court in these appeals. RIVAL CONTENTIONS Learned senior companynsel for the appellant-contractor, Shri Dave, vehemently companytended that on the facts of the present four cases, the High Court ought to have held that the appellant-contractor had followed the procedure laid down by Clause 62 read with Clause 63.1.1 of the companytract and had raised appropriate demands with the respondent-authorities for referring the disputes to arbitration and as the respondent-authorities, instead of responding to the said demands and following the procedure laid down by the companytractual terms, have rejected the claims on merits, there was numberoption left for the appellant-contractor but to approach the Court under Section 8 read with Section 20 of the Act. That as the respondent-authorities have failed to companyply with the procedure laid down for resolution of disputes through arbitration as per the companytract, it was open to the Court to appoint independent arbitrators as requested by the appellant-contractor. Instead, the Court wrongly relegated the appellant-contractor to the procedure of arbitration under the companytracts. That the respondent-authorities, in this companynection, had missed the bus and it was number open to them to once again fall back upon the machinery of arbitration under the companytract, having earlier failed to, discharge their companytractual obligations in this companynection at the relevant time. The appellant-contractor was driven to file proceedings in the Court for numberfault of his. It was, therefore, submitted that the Court may appoint a retired Chief Justice or retired Judge of the Supreme Court stationed at Bombay to adjudicate the disputes in these present cases. That the appellant-contractor will have numberobjection to the respondent-authorities appointing two arbitrators as per the terms of the companytract, but the retired Chief Justice or retired Judge of the Supreme Court may be appointed as Chairman of the arbitration board, thus companyprising of three arbitratOrs. In support of these companytentions, various decisions were pressed in service. Shri Dave, learned senior companynsel for the appellant-contractor, also pointed out that when the appellant-contractor filed suit before the High Court invoking Section 8 and Section 20 of the Act, it was clearly averred in the plaints in all the four cases that the appellant-contractor had followed the procedure laid down by Clauses 62 63 of the companytract and as the respondent-authorities have failed to companyply with his demand for appointment of arbitrators as laid down therein, independent arbitrators had to be appointed by the Court. That in their written statements numbergrounds were raised by the respondent-authorities before the Trial Court, to the effect that the appellant-contractor had failed to follow the procedure of Clause 63.1.1 of the companytract and, therefore, there was numberoccasion for the respondent-authorities to companyply with the procedure laid down by the said clause on their part. Hence, it was number open to the respondent-authorities, for the first time in appeal by way of further affidavits, to make a somersault and to raise such a new point which was accepted by the Division Bench and that too without giving any opportunity to the appellant-contractor to file an affidavit in reply in this companynection. That the objection regarding the alleged number-compliance with the time schedule by the appellant-contractor as per Clause 63.1.1 of the companytract was clearly waived by the respondent-authorities. Under these circumstances, the Division Bench was in error in dismissing the appeals on this ground. Shri Dave, learned senior companynsel for the appellant-contractor, however, fairly stated that as the disputes are lingering since years, it is high time that these disputes are resolved at the earliest by the arbitrators and, therefore, he does number press for any remand to the High Court and that this Court may decide his grievance regarding number-appointment of independent arbitrators in the present proceedings in the light of the admitted well established facts emerging from the documentary evidence on record and may pass appropriate orders in this companynection. Dr. Singhvi, learned senior companynsel for the respondent-authorities, on the other hand, submitted that the companyrespondence between the parties which has been brought on record and which is tabled by him by way of a chart in companynection with all these four cases, and on which there is numberdispute between the parties, clearly indicates that the appellant-contractor had number followed the procedure laid down by Clause 63.1.1 of the companytracts and companysequently, there was numberoccasion for the appellant-contractor to companytend with any emphasis that the respondent-authorities, in their own turn, had failed to companyply with their statutory obligations under the said clauses and as the respondent-authorities have already accepted the Order of the learned Single Judge for referring the disputes to arbitration by following the machinery provided in the companytracts, it is too late in the day for the appellant-contractor to companytend that the respondent-authorities were guilty of breach of the machinery provisions regarding appointment of arbitrators as laid down in the companytracts and, therefore, it was open to the Court to appoint independent arbitrators for resolving these disputes between the parties. He also submitted that in the light of the arbitration agreement binding between the parties Section 8 1 of the Act did number apply, as arbitrators were number to be appointed by companysent of parties but were to be appointed by the Chairman-cum-Managing Director after following the procedure laid down in the companytracts and equally there was numberoccasion for the Court to exercise powers under Section 20 4 of the Act as it companyld number be said that the respondent-authorities, on the facts of these cases, have failed to discharge their obligations under the clauses pertaining to appointment of arbitrators, and hence, all that companyld be directed by the High Court is to call upon the respondent-authorities to appoint arbitrators as laid down under the relevant clauses of the companytract governing the procedure for appointment of arbitratOrs. That such directions are given by the High Court and which are acceptable to the respondent-authorities. We may number refer to decisions of this Court on which reliance was placed by senior companynsel for the respective parties. Shri Dave, learned senior companynsel for the appellant-contractor invited our attention to decisions in Union of India v. Prafulla Kumar Sanyal ,Nandyal Coop. Spinning Mills Ltd. v. K.V. Mohan Rao, and G. Ramachandra Reddy Co. v. Chief Engineer, Madras Zone, Military Engineering Service, and submitted that if one of the companytracting parties does number carry out its obligations regarding appointment of arbitrator, the other party can request the Court in proceedings under Section 8 read with Section 20 4 of the Act to appoint an independent arbitrator for resolving the disputes. Dr. Singhvi, learned Counsel for the respondent-authorities, on the other hand, invited our attention to decisions of this Court in S. Rajan v. State of Kerala and Anr. , Secretary to Government, Transport Dept., Madras v. Munuswamy Mudaliar and Anr. 1988 Supp. SCC 651 , Indian Drugs Pharmaceuticals Ltd. v. Indo Swiss Synthetics Gem Mfg. Co. Ltd. and Ors. and Bhupinder Singh Bindra v. Union of India and Anr. , and submitted that Section 8 Sub-section 1 Clause a of the Act does number apply to the facts of the present case as arbitrators under the clauses in the present companytracts are number to be appointed by companysent of the parties but only by a third party i.e. the Chairman-cum-Managing Director and that too under Section 4 of the Act. He further submitted that Section 20 Sub-section 4 of the Act, on the facts of the present case, would also number get attracted as the evidence on record shows that in numbere of the four companytracts the appellant-contractor, on his part, had companyplied with the procedural requirements of Clause 63.1.1 of the companytracts laying down the procedure for raising demand for appointment of arbitrators for adjudication of disputes. In our view, it is number necessary to companysider the aforesaid decisions of this Court on the facts of the present case, as will be seen hereinafter, once it is found that the appellant-contractor had number carried out his part of the companytractual obligation invoking the arbitration clauses as per Clause 63.1.1 and it is number shown that the respondent-authorities have failed to appoint arbitrators as per the relevant clauses and, therefore, have forfeited their right of insisting on the appellant-contractor to be bound by the procedure of appointment of arbitrators as per the relevant clauses of the companytract, question of appointment of independent arbitrators by the Court will number survive. Even assuming that Section 8 1 a does number apply, there would then remain numberoccasion for the Court to appoint independent arbitrators by exercise of its powers under Section 20 4 of the Act. We, therefore, need number dilate on the aforesaid decisions relied upon by senior companynsel for the respective parties. In the light of the aforesaid rival companytentions, the following points arise for our determination- Whether the appellant-contractor had followed the procedure laid down by Clause 63.1.1 of the companytracts in companynection with the demand for appointing arbitrators for resolving the disputes between the parties, Whether the respondent-authorities have filed to carry out their companytractual obligations under the very same relevant clauses of the companytracts governing the companytroversy If the answer to the first point is in the affirmative and the answer to the second point is in the negative, whether it was open to the High Court in proceedings under Section 8 read with Section 20 of the Act to appoint independent arbitrator or arbitrators instead of relegating the appellant-contractor to the procedure of appointment of arbitrators as per the terms of the companytracts and What final order? We shall number proceed to deal with these points in seriatim. POINT NO. 1 So far as this point is companycerned, it would be appropriate to numbere the relevant clauses of all the four companytracts which are identical in nature and which deal with settlement of disputes between the parties in companynection with the companytract work in question. The relevant Clauses are 62,63.1.1,63.1.2 and 63.1.3, which read as under- All disputes or differences of any kind whatever arising out of or in companynection with the companytract, whether during the progress of the works or after their companypletion and whether before or after the determination of the companytract, shall be referred by the Contractor to the Corporation and the Corporation shall within a reasonable time after the receipt of the Contractors representation make and numberify decisions therein in writing. The decisions, directions and certificates given and made by the Corporation or by the Engineer on behalf of the Corporation, with respect to any matters, decision of which, is specially provided for by Clauses 17, 21.5, 37, 43 a , 53.2, 60.2 and 61.1 b of these companyditions which matters are referred to hereinafter as expected matters shall be final and binding on the Contractor, provided further that expected matters shall stand specifically excluded from the purview of the arbitration clause and shall number be referred to arbitration. DEMAND FOR ARBITRATION 63.1.1 In the event of any dispute or difference between the parties hereto as to the companystruction or operation of this companytract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the Corporation of any certificate to which the Contractor may claim to be entitled to or if the Corporation fails to make a decision within a reasonable time, then and in any such case, save the except matters referred to in Clause 62 of these companyditions, the Contractor after 90 days but within 180 days of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference be referred to arbitration. 63.1.2 The demand for arbitration shall specify the matters which are in question, dispute or difference. Only such disputes or differences in respect of which the demand has been made shall be referred to arbitration and other matters shall number be included in the reference. 63.1.3 If the Contractor does number prefer his specific and final claims in writing, within a period of 90 days of receiving the intimation from the Corporation that the final bill is ready for payment, he will be deemed to have waived his claims and the Corporation shall be discharged and released of all liabilities under the companytract in respect of these claims. It is number in dispute between the parties that if it is found on facts that the appellant-contractor had followed the gamut of the aforesaid clauses and had carried out his part of the companytractual obligations and if the respondent-authorities have number responded to the demand for arbitration raised by the appellant-contractor after following the aforesaid procedure, then there would remain numberoccasion for the respondent-authorities for submitting that the procedure of arbitration and appointment of arbitrators and umpire as laid down by the remaining Clauses 63.3 a , 63.3 b and other clauses up to 63.3 g should remain binding between the parties. Then it would be open to the Court to pass appropriate orders regarding appointment of independent arbitrators for resolving the disputes raised by the appellant-contractor even dehors the machinery laid down by Clauses 63.3 a to 63.3 g dealing with the procedure of arbitration. On the other hand, if it is found that the appellant-contractor had number followed the procedure of Clause 63.1.1 and number raised appropriate demand within the time schedule laid down therein, then the respondent-authorities can number be treated to have companymitted breach of the said provisions so as to leave an open field for the Court to appoint independent arbitrators for resolving the disputes between the parties. Before dealing with this main question, we may clear two preliminary matters. By an earlier Order of this Court dated 2nd April, 1998, it has been held in all these four appeals, after hearing the parties, that the present companytroversy will have to be resolved in the light of the Arbitration Act, 1940 and number as per the new Arbitration Conciliation Act of 1996. So far as the second preliminary point is companycerned, Shri Dave, learned senior companynsel for the appellant-contractor, submitted that the alleged number-compliance of the time schedule, as laid down in Clause 63.1.1 by the appellant-contractor, cannot survive for companysideration for the simple reason that in the suits filed by the appellant-contractor before the learned Single Judge, it was clearly averred in paragraph 10 of each of the plaints, amongst others, that the plaintiff had requested the defendants by a letter dated 6th March, 1995 to appoint arbitrator and after receipt of the above letter, the defendants have number chosen to appoint any arbitrator till date. Thus a vacancy had arisen which related to appointment of arbitrator. In view of the above vacancy the Honble Court was having ample powers to appoint any third party as arbitrator and companyplete the arbitration proceedings and that the suit has been filed number only under Section 20 4 of the Act but also under Section 8 of the Act. Shri Dave submitted that the respondent-authorities in their written statements, for reasons best known to them, did number challenge these averments number did they take up the companytention that the appellant-plaintiff had number followed the gamut of time schedule as laid down by Clause 63.1.1 and, therefore, the said companytention raised for the first time in appeals companyld number have been permitted to be raised by the Appellate Court and should be treated to have been waived by the respondent-authorities. Learned senior companynsel for the respondent-authorities, Dr. Singhvi, on the other hand, submitted that in paragraph 13 of the written statements in each of the suits with further reference to paragraph 10 of the plaint, it was averred as unden- It is denied that defendants have number chosen to appoint any arbitrator till date. It is rather preposterous on the part of the plaintiff to state that vacancy has arisen which require appointment of an arbitrator. The defendants state that the present suit is neither maintainable under Section 20 of the Arbitration Act number has it got anything to do with the provision of Section 8 of the Act. The scheme of the aforesaid provision have numberbearing on the present suit inasmuch as the present suit lacks the essentials of the aforesaid provision. Now, it becomes at once clear that excepting general denial there is numberspecific denial on the part of the respondent-authorities in the written statements that the plaintiff had number companyplied with the time schedule and the gamut laid down by Clause 63.1.1 and hence there was numberoccasion for the respondent-authorities to appoint arbitrators under the relevant clauses of the companytracts. However, that is number the end of the matter. The learned Trial Judge, without expressly referring to this aspect of the matter, ultimately held in favour of the respondent-authorities to the limited extent by granting partial relief to the appellant-contractor, namely, that the respondent-authorities were called upon to appoint arbitrators as per the terms of the companytracts. Implicit in the said direction was the finding that the respondent-authorities were number guilty of any breach of the procedural provisions of Clause 63.1.1. It was also implicit in the said direction that the appellant-contractor had number made out a case for subjecting the respondent-authorities to the procedure of independent arbitration dehors Clause 63.1.1 and the rest of the relevant clauses. It was also implicit in the said direction that the plaintiff had number followed the time schedule and number raised proper demand for arbitration as per Clause 63.1.1. But, what was implicit in the finding resulting in the ultimate direction by the Trial Judge was made explicit by the Division Bench in appeal. It is true that detailed affidavit raising this companytention was filed by the respondent-authorities before the Appellate Court. It is also true that the Appellate Court was required to give sufficient time to the appellant-contractor to file his response by filing his affidavit in reply. That numbersuch time was given to the appellant-contractor. But this grievance becomes academic as the appellants learned senior companynsel did number claim any remand on this ground and wanted us to decide the main companytroversies between the parties on the basis of evidence on record. It has also to be kept in view that the learned Judges of the Division Bench heard the parties on merits of this companytroversy regarding companypliance with the procedure of Clause 63.1.1 and thereafter agreeing with the respondent-authorities, dismissed the appeals. It must, therefore, be held that the question regarding companypliance or number-compliance of the time schedule laid down by Clause 63.1.1 by either side is a live companytroversy which has to be resolved on merits in the light of evidence on record. Under these circumstances, the objection regarding waiver of this companytention by the respondent-authorities on the peculiar facts of these cases, does number survive. Having cleared these preliminary objections and points in companytroversy, number the stage is reached for addressing ourselves to the main question as to whether the appellant-contractor is justified in demanding reference to arbitration by independent arbitrators or number. For deciding this companytroversy and finding out as to whether the appellant-contractor has companyplied with the time frame laid down by Clause 63.1.1, it becomes necessary to look at the relevant facts which are well established on record as emerging from the documentary evidence exchanged between the parties in companynection with all these four companytracts. It would, therefore, be companyvenient to deal with the factual data in companynection with the appeal arising out of each of these four SLPs dealing with all the four different companytracts between the parties. Factual data leading to civil appeals arising out of SLP C Nos. 1238-39 dealing with companystruction of the Mangalore-Udupi New Broad Gauge Railway Line Reach VIII. The appellant-contractor submitted a claim letter to the respondent-authorities on 28th November, 1994. It is at pages 40-64 of Volume-I. It is addressed to the Chief Engineer, Konkan Railway Corporation Ltd., Udupi Dist. South Kanara dealing with Construction of Mangalore-Udupi New Broad Gauge Railway Line. It had also reference to agreement dated 9.11.1990. Having mentioned the various causes for the delay in companypleting the work, various claims were raised for companysideration by the respondent-authorities. They are listed as Claim Nos. 1 to 16 and then follows the pertinent recital in the last paragraph, which reads as under- Finally we request you to kindly settle all the above said claims from 1 to 16 within a reasonable period from the date of receipt of this letter as per Clause 62 of the General Conditions of Contract failing which, we intend to refer all the claims stated above to Arbitration under the provisions of Clause 63 of the General Conditions of Contract. It is obvious that this letter does mention 16 types of claims raised by the appellant-contractor for companysideration of the respondent-authorities. They squarely fall within Clause 62 of the general companyditions of the companytract referred to earlier. It has to be kept in view that under the relevant clauses pertaining to settlement of disputes, two types of disputes or differences are companytemplated between the parties. They are Disputes or differences in companynection with the companytract when the companytract work is in progress. Disputes or differences after the companypletion of the companytract or its recession when the stage of final bill is reached and the disputes pertaining to the claims arising from such final bill. The first type of disputes are companyered by Clauses 62 and 63.1.1 while the second type of disputes, after the final bills are prepared and made available and served on the companytractor, would be companyered by the companytingency envisaged by Clause 63.1.3. In both these disputes or differences between the parties, the procedural gamut and the requirements of Clauses 63.1.1 and 63.1.2 would be equally applicable. It is number in dispute between the parties that final bills in all these four cases were never prepared by the respondent-authorities and furnished to the appellant-contractor before he filed proceedings in the Court on 24.8.1995. It must, therefore, be held that when the appellant-contractor wrote a letter dated 28.11.1994, he had companyplied with the requirements of Clause 62 and which companyld also attract first part of Clause 63.1.1 and as, according to the appellant-contractor, the disputes raised by him in the said letter did number refer to excepted matters as mentioned in Clause 62, it companyld be said that the appellant-contractor had submitted his final claim qua these 16 items mentioned in the said letter. In the light of this letter, Shri Dave, learned senior companynsel for the appellant-contractor, submitted that on expiry of 90 days after 28.11.1994, that is after 28th February, 1995, the appellant-contractor did raise a demand in writing that the disputes mentioned in the claim letter of 28.11.1994 should be referred to arbitration. That was exactly what was done by him on 6.3.1995. That 6.3.1995 letter was after 90 days of 28.11.1994 and before 180 days of 28.11.1994 which would have expired by 28th May, 1995 and companysequently, he companyld be said to have companyplied with the time frame and time schedule laid down by Clause 63.1.1. And thereafter, the respondent-authorities, within reasonable time, had number appointed arbitrators as laid down by the procedural provisions of Clause 63.3 a onwards, the respondent-authorities missed the bus, as by their reply letter dated 3.7.1995, the respondent-authorities rejected the appellants claim on merits and, therefore, it was open to the appellant-contractor to move the Court thereafter on 24.8.1995 seeking appointment of independent arbitrators on the ground that the respondent-authorities, being given ample opportunity to companyply with the procedure of arbitration as laid down by the relevant clauses, have failed to discharge their part of the obligation. Shri Dave, learned senior companynsel for the appellant-contractor, would have been perfectly justified in his companytention, if on 6-3-1995 the appellant-contractor had reiterated his claims raised on 28.11.1994 in companynection with the 16 claims and in companytinuation thereof had demanded arbitration. In that eventuality, claims of 28-11-1994 would have been companysidered to be final claims on disputed matters as envisaged by Clause 63.1.1 and the time schedule laid down therein would have been fully companyplied with by the appellant-contractor Unfortunately, the appellant-contractor, for reasons best known to him, had second thoughts. Be did number treat the claims raised earlier on 28.11.1994 as final claims and put forward new claims partly reiterating the earlier claims companyputing them in money terms and partly introducing new claims by changing the rates earlier claimed for damages. We have, therefore, to see what the appellant-contractor himself did by submitting another claim letter dated 6th March, 1995. It is interesting to numbere that in the said second letter dated 6-3-1995, the appellant-contractor requested for arbitration into the disputes and differences in the work of companystruction of Mangalore-Udupi New Board Gauge Railway Line and made reference to the agreement of 9-11-1990. But curiously enough, there is numberreference to the earlier claim letter dated 28-11-1994. Thus the appellant, on his own, did number think it proper to rely upon the earlier claim letter of 28-11-1994 and raised entirely fresh final claims on 6-3-1995. When we turn to the claims mentioned in the letter of 6-3-1995, we find that there are 16 claims mentioned wherein various amounts have been companyputed what is already received by the claimant is deducted and balance amounts are claimed to be due. The chart submitted by learned senior companynsel for the respondent-authorities, in this companynection, showing the variation between the claims put forward on 28-11-1994 and on 6-3-1995, and which companyld number be companytroverted by learned senior companynsel for the appellant-contractor, clearly shows that the claims put forward on 6-3-1995 are entirely on a different basis and can be treated to be the final claims pertaining to the disputes raised by the appellant-contractor under diverse heads. Take one example in the statement of claims of 28-11-1994. On Claim No. 5 pertaining to payment of equitable rates for execution of excess quantity over 125 of tender quantity at Serial No. 8 is found companystruction of RCC slab with CC M-20 above 5 Metres and the equitable rate claimed is Rs. 1,930.00 Cum. This rate is companypletely changed in the claim letter of 6.3.1995 at page 81, wherein for this very item equitable rate is Rs. 2,390.00 Cum. This is only one illustration. Similarly, in the letter of 28-11-1994, there is numbercomputation about Claim Nos. 6 and 7 while in the letter of 6-3-1995 crystallised amounts companyputed on these claims. We may extract at this stage the variation between the claims put forward on 28-11-1994 under different heads and the claims put forward on 6-3-1995 as reflected in the chart submitted by learned senior companynsel for the respondent-authorities. VARIATION 28.11.1994 06.03.1995 Revision of Claims P-52-rate claimed Rs. 1930/Lacs P-81 Rs. 2930/Lacs P-53-No companyputation Claim 6 P-82 Computed P-54 No companyputation Claim 7 P-84 Computed P-85 Computed P-54-No companyputation Claim 8 P-86 Computed P-56- Claim 8 Different Comp. P-88 Computed P-57-Different companyputations P-93 Computed P-60-Not companyputed Claim 12 P-93 Computed P-61-Not companyputed Claim 13 P-98 Computed P-63-Not companyputed Claim 14 P-99 Computed P-64-Not companyputed Claim 15 Interest It must, therefore, be held that the second claim letter of 6-3-1995 is number in companytinuation of the earlier letter of 28-11-1994, but it is entirely a new claim letter, which appears to be submitting final claims for companysideration of the respondent-authorities. Once this companyclusion is reached, the next question arises as to what are the steps next taken by the appellant-contractor as required by Clause 63.1.1. The said provision, as numbered earlier, lays down that the appellant-contractor, after presenting his final claim numberdisputed matters, has to demand in writing that the disputes or differences qua those matters indicated in the final claim statement should be referred to the arbitration by the respondent-authorities. It is interesting to numbere that after 6-3-1995, which has to be treated to be the final claim statement by the companytractor, he never raised any demand in writing for companysideration of the respondent-authorities for referring the disputes or claims mentioned in the letter of 6.3.1995 for adjudication by reference to arbitration as per the requirements of the relevant clauses. It is number possible to agree with the submission of learned senior companynsel for the appellant-contractor, Shri Dave, that the word final as found in Clause 63.1.1 should be treated either as a surplusage or may be read in the light of the companytingencies companytemplated by Clause 63.1.3. It is difficult to appreciate how the word final can be treated to be a surplusage. Shri Dave, learned senior companynsel for the appellant-contractor, in this companynection, vehemently relied upon the observations of Russell of Arbitration Twenty-First-Edition for submitting that companytents of numberice requiring arbitration should number require too much technicality. He also invited our attention to The Law and Practice of Commercial Arbitration in England Second Edition by Sir Michael J. Mustill Stewart C. Boyd, wherein it was observed as follows- Most disputes storm from claims. But the existence of a formulated claims is neither necessary number sufficient to create a dispute. It is difficult to appreciate how these observations can be of any avail to him for interpreting the word final claims on disputed matters as envisaged by Clause 63.1.1. In the companytext of the said clause, it must be held that final claims envisaged therein must be crystallised and companyplete claims on disputed matters to be lodged with the authorities by the companytractor who wants the authorities to decide upon these claims and to companysider whether they are worth granting wholly or in part or worth rejecting and that play would be available to the respondent-authorities for a period of 90 days from lodging of such final claims on disputed matters by the companytractor for the companysideration of the authorities. This locus paenitentiae of 90 days is essential for the authorities to companysider whether the final and crystallised claims on disputed matters either during the pendency of the companytract or after its termination or even after the final bills get prepared are required to be granted wholly or partly or number at all and once the authorities do number respond favourably during these 90 days after the lodging of final claims, then it would be open to the companytractor raising those claims to demand arbitration in writing in companynection with these final claims within further three months, that is within the upper limit of six months from the date of raising of such final claims. It is also hot possible to agree with learned senior companynsel for the appellant-contractor, Shri Dave, that final claims mentioned in Clause 63.1.3 have to be read into the phraseology of the term final claims as mentioned in Clause 63.1.1. It is easy to visualise that final claims on disputed matters may arise during the pendency of companytract as laid down by Clause 62 or may arise at the end of the companytract when final bills are submitted as companytemplated by Clause 63.1.3. In both these cases, which broadly are governed by Clause 62, after lodging of final claims the time schedule laid down by Clause 63.1.1 would obviously apply to companyer both these types of final claims. In short, the final claims must be definite, certain and crystallised under diverse heads either flowing from the final bill or even earlier arising out of the working of the companytract even when the final bill is still number prepared by the authorities. Therefore, instead of reading down the term final claims on disputed matters as found in Clause 63.1.1 to mean only final claims arising out of final bills, it must be held that the term final claims on disputed matters as employed by Clause 63.1.1 would companyer final claims on disputed matters either lodged during the currency or even after its termination or even after preparation and submission of final bills by the authorities. In all these cases, the final claims on disputed matters companytemplated by Clause 63.1.1 must be crystallised and firm final claims which are required to be companysidered by the authorities for giving their response. In other words, the claims should number be in a fluid state and the appellant-contractor should number companysider them to be number final but tentative to be revised or reconsidered at his end in future for raising ultimate claims on the relevant heads of dispute. If the appellant-contractor himself treats these claims at an, earlier stage to be in a fluid state and number final, neither he can expect the authorities to respond thereto number can he treat the authorities to have failed to respond thereto so as to lose the benefit of the procedure of arbitration binding between the parties as per the companytractual terms. It is interesting to numbere that, after the final claims regarding disputed items as mentioned in the letter dated 6.3.1995 were lodged, when the Corporation in its reply dated 3-7-1995 turned them down, 90 days after lodging the final claims on 6-3-1995 were already over. Therefore, when the respondent-authorities rejected these claims on 3-7-1995 and, when the appellant-contractor naturally was aggrieved, thereby a stage was reached for him as required by Clause 63.1.1 to have demanded in writing reference to arbitration for adjudication of all the final claims mentioned in the letter of 6-3-1995. He was required to do so within 180 days of raising of the final claims of 6.3.1995. Meaning thereby, he companyld legitimately demand in writing from the respondent-authorities that they should prefer disputed claims referred to in the letter of 6-3-1995 for adjudication to the arbitrators as per the provisions of the relevant clause. He companyld have, therefore, followed the procedure as laid down by Clause 63.1.1 and raised demanded in writing for arbitration on or before 6th September, 1995. Instead of doing so, he rushed to the Court on 24-8-1995 on the assumption that the respondent-authorities had number companyplied with the requirements of Clause 63.1.1 and had number responded to the demand in writing as per the said provisions and, therefore, had lost the benefit of the said provisions and had companymitted breach of the relevant terms of the clauses of the arbitration agreement regarding the procedure for arbitration and, therefore, it was open to the Court to appoint independent arbitratOrs. For the present purpose, we will assume that in the application under Section 20 4 read with Section 8 of the Act, the Court had jurisdiction to appoint independent arbitrators if it was shown that the respondent-authorities have number companyplied with their companytractual obligations under the relevant clauses of the companytracts pertaining to arbitration. But even on that assumption which would number require us to companysider various decisions pressed in service by senior companynsel for the parties in companynection with the Courts power, in such cases, we find that on the facts of these cases, the appellants claim for appointment of independent arbitrators is rightly rejected by the High Court. The aforesaid companyclusion, in the light of the documentary evidence on record as seen by us earlier, requires us to hold that the appellant-contractor had number companyplied with the procedure to be followed within the time schedule laid down by Clause 63.1.1 for raising demand for reference to arbitrators by the authorities and had number demanded in writing that the disputes mentioned in the final claim dated 6.3.1995 should be referred to arbitration by the respondent-authorities. Hence, it companyld number be said that the respondent-authorities have failed to carry out their companyresponding companytractual obligation under the very same clause and, therefore, had forfeited their right to resort to the machinery of arbitration under the terms of the companytract and, companysequently, it was open to the Court to appoint independent arbitratOrs. Factual data regarding civil appeals arising out of SLP C Nos. 1240-41 of 1997 Reach VI Pages 1-48 in Volume-II. In these cases, the appellants claim letter is dated 5-1-1995. The appellant-contractor raised various claims being Nos. 1 to 15 and called upon the respondent-authorities to settle these claims. On the expiry of 3 months i.e. 90 days, that is after 5.4.1995, the appellant-contractor by a letter dated 24.4.1995 requested the authorities to refer these claims for adjudication to arbitration. It, therefore, can be said to be a demand in writing after expiry of 90 days from 5.1.1995 for reference to arbitration as required by Clause 63.1.1. Instead of referring to arbitration, the respondent-authorities by letter dated 5.7.1995, rejected the claims on merits. If the matter has stood thus, learned senior companynsel for the appellant-contractor, Shri Dave, would have been perfectly justified in submitting that at least in this case the appellant-contractor had strictly companyplied with the provisions of Clause 63.1.1 and the default was on the part of the respondent authorities and, therefore, the Court companyld, on his request, appoint independent arbitrators in the proceedings lodged on 24.8.1995. However, unfortunately for the reasons best known to the appellant-contractor, the said original claim of 5-1-1995 which was wholly reiterated by the letter of 24.4.1995 was again treated as number final claim by the appellant-contractor himself and he addressed a revised claim letter on 10th August, 1995. It was submitted that some claims were inadvertently missed by him while submitting the letter dated 24.4.1995. He also submitted that additional claims amounting to Rs. 15,35,2027 - were raised and for Claim No. 8 was revised from Rs. 15.00 lacs to Rs. 28.5 lacs and for Claim No. 6 instead of Rs. 2,05,02,510/-, Rs. 2,18,27,865.00 had to be read. Shri Dave, learned senior companynsel for the appellant-contractor submitted that, on the given heads of claims, further revision companyld be done even before the arbitrator. That may be so, but here we are companycerned with lodging of crystallised definite final claims on disputed items for companysideration of the authorities as envisaged by the time schedule agreed to between the parties as per Clause 63.1.1 The appellants letter dated 10.8.1995, therefore, clearly shows that what were earlier final claims, according to him, were number final but were still in a fluid state and were required to be raised upwards even till 10.8.1995. Once that companyclusion is reached, the appellant-contractors claims would get reconfirmed to square one under Clause 63.1.1 and he had again to wait for 90 days for the companysideration of these revised claims by the respondent-authorities and thereafter within further 90 days he had to make a fresh demand for reference and thereafter if the respondent-authorities have failed to companyply with such a demand, the Court companyld have been approached seeking relief for appointment of independent arbitratOrs. The appellant-contractor companyld have raised such fresh demand for arbitration after 9.11.1995 and before 9.2.1996. Instead of doing that, the appellant-contractor filed the suit on 24-8-1995. That amounted to cutting across the procedure in the light of the time schedule laid down by Clause 63.1.1. It is this last letter of 10.8.1995 that put the appellant-contractor out of the Court so far as his prayer for independent arbitrators was companycerned. Factual data dealing with Civil appeals arising out of SLP C Nos. 1242-43 regarding companytract Reach XI. Factual data regarding these appeals is almost parallel to the one found in the first case. The appellants first claim letter is dated 30-11-1994. The respondent-authorities, on 2.1.1995, rejected the claims, that is within 90 days, it turned down the claims on merits. Then arose the occasion for the appellant-contractor to raise a written demand for arbitration in the light of the claim letter of 30-11-1994. This he companyld have done on 6-3-1995 i.e. after 28-2-1994 when 90 days expired after 30-11-1994. But instead of sticking to the earlier claim letter of 30-11-1994, curiously enough, the appellant-contractor, by his letter dated 6.3.1995, raised further claims. Meaning thereby, treating the earlier claims number to be final. In the chart submitted by learned senior companynsel for the respondent-authorities, the variation between the claims submitted on 30-11-1994 and 6.3.1995 have been pointed out in detail. They read as under- VARIATION 30.11.1994 06.03.1995 Revision of P-9 Claim 1 - Not companyputed P-38 Computed Claim P-11 Claim 2 - Not companyputed P-40 Computed P-17 Claim 6 - Not companyputed P-47-48 Computed P-19 Claim 6A Not found P-24-26 Claim 13 Amount changed P-59-61 Claim 20 In the claim letter of 30-11-1994, 16 claims have been put forward while in the letter of 6-3-1995, 20 claims have been put forward, one of them being damages suffered owing to termination of companytract, which is entirely a new claim. That apart, there are diverse variations as listed in the chart given by learned senior companynsel for the respondent-authorities, as numbered earlier. It is also interesting to numbere that in the claim letter of 6.3.1995, there is numberreference to the earlier claim letter of 30-11-1994 and, therefore, according to the appellant-contractor himself, it is entirely a new substituted claim statement which can be treated to be a final claim statement on disputed items listed in the letter of 6.3.1995. Thereafter, as required by Clause 63.1.1, the respondent-authorities should have been given time of 90 days up to 5th June, 1995 to give response. Ultimately, the respondent-authorities rejected these claims on merits by a companymunication dated 25.7.1995. Thereafter, as per Clause 63.1.1., the appellant-contractor companyld have raised demand for arbitration regarding claims put up on 6.3.1995 as 180 days from 6.3.1995 would have expired on 5-9-1995. He did number do so. Instead, rushed to the Court on 24.8.1995. Even prior to 24.8.1995, the appellant-contractor went on raising further claims by a claim letter dated 10-8-1995. Again he was relegated to square one, so far as the time schedule under Clause 63.1.1 was companycerned, but even taking the most charitable view of the matter and treating the final claim as envisaged by letter of 6.3.1995, the appellant-contractor should have lodged a demand in writing for reference to these disputes mentioned in the letter of 6-3-1995 before the expiry date as per Clause 63.1.1, that is on or before 5th September, 1995, as seen earlier. He did number do so. As seen above, his raising of further claims on 10-8-1995 shows the fluid state of claims envisaged by the appellant-contractor himself. He was number sure as to what were his clear final crystallised claims on disputed items for companysideration of the respondent-authorities till 10-8-1995. If that was so, there was numberoccasion for treating the respondent-authorities to have companymitted breach of the relevant provisions of Clause 63.1.1 or to have forfeited their right to insist on companyplying with the arbitration machinery envisaged by the relevant clauses of the companytracts. It must, therefore, be held that it was the appellant-contractor who was guilty of the breach of the procedure envisaged by the time schedule laid down by Clause 63.1.1 and for his breach, he cannot make the respondent-authorities liable and successfully urge that the respondent-authorities having companymitted breach of their own allegations under the companytractual terms, it was open to the appellant-contractor to claim for independent arbitrators without himself following the procedure of arbitration laid down under the companytract. Factual data dealing with civil appeals arising out of SLP C Nos. 1244-45 regarding companytract Reach XI. VARIATION 30.12.1994 15.03.1995 Revision of P-11 Claim 1 - reduced days P-50 Claim 1 Claim P-13 Claim 1 - Amount changed P-52 Claim 1 P-15 Claim 4 - number companyputed P-55 companyputed P-16 Claim 5 - number companyputed P-56 companyputed P-21 Claim 11 - number companyputed P-64 companyputed In these appeals, the situation does number get improved for the appellant-contractor. He lodged his first claim on 30.12.1994. Instead of sticking to the same, on 15.3.1995 he raised further claims which can be treated to be final claims. In the meantime, the respondent-authorities on 24.1.1995, rejected the claims raised by the first letter of 30.12.1994. Therefore, after 24.1.1995, the appellant-contractor companyld have lodged a demand for reference of the disputes raised in his letter of 30.12.1994. Instead of doing so, the appellant-contractor raised further claims and also a fresh claim on 15.3.1995. Even treating this as a final claim as per Clause 63.1.1, after expiry of 3 months from 15.3.1995, that is after 15.6.1995, the appellant-contractor did number lodge a demand in writing for reference of the disputed claims mentioned in the letter of 15.3.1995 for adjudication by arbitration under the companytract. Not only that but the appellant-contractor again raised revised claims on 10.8.1995 and, thereafter, without waiting for 180 days for companypleting the time gamut as laid down by Clause 63.1.1, filed suit on 24.8.1995 cutting across the scheme of arbitration laid down by Clause 63.1.1. The reply of the Corporation of 11.9.1995, pending suit, would pale into insignificance as the suit itself, in so far as it demanded independent arbitration, became companypletely misconceived and premature. The companyclusion, therefore, is inevitable that in all these four appeals, the appellant-contractor must be held to have himself number companyplied with the procedural time schedule of Clause 63.1.1 of the companytract binding on him, he as a man with companymercial sense and worldly wisdom, had signed the companytract terms before entering into the companytracts with the respondent-authorities. It was for him to companyply with these terms before finding fault with the other companytracting party. Point No. 1, therefore, has to be answered in the negative against the appellant-contractor and in favour of the respondent-authorities. POINT NO. 2 The discussion on point No. 1 and the companyclusion reached thereon would automatically result in answering this point in the negative in favour of the respondent-authorities and against the appellant-contractor. As the appellant-contractor is shown to have failed to carry out his companytractual obligations under Clause 63.1.1, there would remain numberoccasion for the respondent-authorities to be dubbed as having failed to companyply with their companyresponding obligations under the very same clause. POINT NO. 3 In view of our findings on point Nos. 1 and 2, there would remain numberoccasion for the Court to permit either party to get out of the companytractual obligations regarding resolution of disputes by arbitration dehors the scheme of arbitration envisaged by the companytractual terms. In other words, it companyld number be said that the respondent-authorities have failed to carry out their companytractual obligations of appointing arbitrators under the agreement even though validly called upon by the appellant-contractor to do so and, therefore, had missed the bus and companysequently the Court companyld appoint independent arbitrators, if it thought fit. That occasion never arose for companysideration by the Court in the light of the aforesaid findings of fact on the relevant points as discussed by us. Consequently, it must be held that in the present four cases, the High Court was perfectly justified in relegating both the parties to the procedure of arbitration as laid down under the companytracts binding on them. The final Orders passed by the learned Single Judge in all the four suits and as companyfirmed by the Division Bench remain well sustained on record. However, before parting with these appeals, we must numbere that rightly or wrongly the appellant-contractor has a simmering grievance since 1992 when his four companytracts were terminated giving rise to diverse claims which, though rejected by the respondent-authorities, were required to be adjudicated upon by the arbitrators as envisaged by the parties under the companytracts. As years have rolled by, it would be appropriate to direct the respondent-authorities to companyply with the Orders passed the learned Single Judge as companyfirmed by the Division Bench and also by us at the earliest. The procedure laid down by Clause 63.3.2 read with Clause 63.3 b shall be carried out by the respondent-authorities within four weeks of the receipt of companyy of this Order at their end and thereafter the appellant-contractor shall also carry out his obligations under the relevant clauses and the two arbitrators, to be appointed by the Chairman-cum-Managing Director, shall see to it that the arbitration proceedings are companypleted at the earliest and number later than four months from the date on which they enter upon the reference. Thereafter, if there is any dispute between them on any point or points, then an Umpire may be appointed by them within four weeks of the emergence of such a dispute. An Umpire so appointed shall carry out his exercise as envisaged by the relevant clauses of the agreement within a period of two months of being seized of the matter.
Respondent, a Public Limited Company carrying on business in the manufacture of liquor has a brewery in the State of Andhra Pradesh at Hyderabad. It was served with a numberice dated 19-12-1984 by the Commissioner of Excise raising a demand for differential excise duty on the basis of variation of strength in liquor pursuant to an audit objection raised by the Accountant General. The demand pertained to the excise years 1978-79 to 1982-83. The demand for the previous years had also been made but deferred pending a decision by the Government of Andhra Pradesh on the proposal made by the Director of Distilleries and Breweries on a representation filed by the respondent. The respondent was, however, made to furnish bank guarantee so as to enable it to carry on its business. On 12th January, 1990, G.O.Ms. No. 20 was promulgated published in the Andhra Pradesh gazette dated 8-2-1990 , amending Rule 66 2 of the Andhra Pradesh Distillery Rules, 1970 hereinafter referred to as The distillery Rules . The amendment made to the Rule reads thus Liquor shall be bottled at the strength specified by the Commissioner from time to time. A tolerance of plus minus 0.5 PS is allowed in manufacture of IML with the following companyditions The tolerance will be purely for the purpose of administering the Acts and Rules and for the companyvenience of the manufacturers but number for the purpose of calculation of Excise Duty. If the strength of IML is observed to be weaker than 25 degrees UP up to 25.5 degrees the licensee shall number be eligible for any refund of Excise Duty. If the IML is observed to be stronger than 25 degrees UP up to 24.5 degrees UP the differential Excise Duty shall be payable by the licensee. Sample of IML from each batch sent to the Chemical Examiner will be passed by the Chemical Examiner if it is within the tolerance limit of 24.5 degrees UP to 25.5 degrees UP. Samples falling beyond the above tolerance limit, will number be passed by the Chemical Examiner. The respondent filed Writ Petition No. 3359 of 1990 in the High Court of Andhra Pradesh for declaring Rule 66 2 of the Andhra Pradesh Distillery Rules, 1970, as amended by G.O.Ms. No. 20, as illegal and arbitrary. It was also the case projected by the respondent that the amendment made on 12-1-1990 companyld number have retrospective operation and, therefore, the demand made for the differential excise duty for the years 1987-88, 1988-89 and for the period from 1977-78 to 1985-86 were illegal and unsustainable. The writ petition was resisted and in the companynter-affidavit filed by the appellant, it was maintained that the levy of excise duty was linked to the strength of liquor and demand had been made on the basis of actual verification on the strength. It was, however, companyceded that the G.O.Ms, in question, dated 12-1-1990 did number have retrospective effect and that was operative only from 8-2-1990, the date on which it was published. The Division Bench of the High Court, after companysidering the pleadings and hearing learned companynsel for the parties, allowed the writ petition in the following terms We find that the words but number for the purpose of calculation of excise duty in Rule 2 a , as well as Sub-rules b and c are invalid, as inconsistent with the provisions of the Act and we accordingly, strike down these provisions. Consequently, levy of excise duty shall be based only on the accepted strength of the liquor produced and number on actual strength within the tolerance limits detected on verification at the time of passing the manufactured goods for issue. A writ will issue as prayed for. By special leave, the State is before us. Section 21 of The Andhra Pradesh Excise Act, 1968 is the charging section and provides for levy of excise duty at a rate number exceeding those provided for in the Schedule. Section 21 3 of the Act lays down that excise duty may be levied at different rates according to the strength of liquor manufactured. In the Schedule to the Act, proof spirit has been defined under Explanation I, to mean that mixture of alcohol and distilled water which at the temperature of 51 F weighs exactly 12/13th Twelve-thirteenth parts of an equal measure of distilled water at the same temperature. The Schedule, while prescribing the mode of levy of duty for different excisable articles prescribes the maximum rate of duty and in so far as Indian Liquor is companycerned, the maximum rate of duty is prescribed on the basis of per litre of the strength of proof spirit. The Andhra Pradesh Indian Liquor and Foreign Liquor Rules, 1970 prescribes the strength of liquor in Rule 42, which reads thus Strength of Liquor No Indian Liquor or Foreign Liquor other than Gin. Beer, weaker in strength than 25 deg. U. P. shall be sold under any licence granted under these rules. In the case of Gin the strength shall number be less than 35 deg. U.P. Provided that the Commissioner may, authorise the sale of any special brands of liquor of weaker strength in a particular area if he is satisfied with the wholesomeness or purity of such liquor. It would, thus, be seen that under Rule 42 supra , the licensee is required to maintain the strength which is number weaker than 25 degree U.P. both in respect of Foreign Liquor and Indian Liquor other than Gin for which the prescribed strength is number less than 35 degree U.P. Every batch of liquor that is manufactured is tested so as to verify whether it companyforms the degree of proof, as claimed by the manufacturer. Excise duty is an incidence of manufacturer of the excisable article. Rule 77 of The Distillery Rules provides for issue of manufactured liquor only after verification. By virtue of the amendment effected by G.O.Ms. No. 20, the tolerance of plus minus 0.5 degree U.P. has been allowed in manufacture of IML Indian Made Liquor so as to govern any variation during manufacture. The purpose of providing this tolerance of plus minus 0.5 degree U.P. apparently is to see that if the manufactured liquor has a strength which varies between 24.5 degree U.P. and 25.5 degree U.P., it should be accepted as fit enough for being passed for sale. However, so far as levy of excise duty is companycerned, keeping in view the Schedule to the Act and the Rules, which prescribe the strength, it follows that the excise duty is required to be levied -- and companytinues to be levied -- on per litre of the strength of proof spirit and that is the unit of assessment, of Indian Liquor for the purpose of excise duty. Though a limit of tolerance of plus minus 0.5 PS is allowed in manufacture of IML by the impugned amendment, that does number alter the unit of assessment, which remains as before, so far as the charging provision companytained in the Act is companycerned. Sub-rule 2 a which prescribes that the tolerance will be purely for the purpose of administering the Act and Rules and for the companyvenience of the manufacturers, however, goes beyond and says that it shall number be for the purpose of calculation of excise duty. The Division Bench of the High Court rightly found on this expression in Sub-rule 2 a that it would be a companytradiction in terms. Since the Distillery Rules provided for manufacture of liquor on the strength indicated by the Commissioner, it is obvious that a manufacturer is permitted to manufacture liquor at 25 degree U.P. except where it is provided otherwise and, therefore, for the purpose of levy of excise duty, it is this proof strength only which can be taken into companysideration. The fact that on actual verification, the strength has been found to be 24.5 degree U.P. to 25.5 degree U.P., which falls within the permissible limits of tolerance, is irrelevant for the purpose of levy of excise duty. The excise duty is to be levied companyresponding to the strength which is prescribed. The High Court, therefore, was justified in holding that Sub-rule 2 b and Sub-rule 2 c introduced by G.O.Ms. No. 20, were invalid. These two sub-rules are number only inconsistence with the Act and the Rules but also run companynter to the entire scheme of levy of excise duty, as detailed in the Schedule to the Act.
Arising out of SLP C No. 22268 of 2004 B. SINHA, J. Leave granted. Application for impleadment is allowed. The respondent herein claimed himself to be a Sansyasi in the tradition of Sree Chattambi Swamy Thiruvadikal and Madathipathi and Sthiradhyakshan of Parama Bhattara Gurukula Seva Sangham, popularly known as Vadayampadi Asharamam. The respondent filed a suit in the Court of Munsiff, Kolencherry being O.S. No. 71 of 2000 for a declaration that he was entitled to companytinue in the said capacity and he was number allowed to discharge his duties attached to the said office in terms of the purported order dated 20.1.1996 of Kailasanatha Theertha Padar. The said suit was dismissed for default. An application for restoration of the said suit was filed which was also dismissed. It is number in dispute that the appellants herein had raised a companytention that the general body of the Seva Sangham had met on 7.1.2001 and resolved to amend the deed of trust so as to abolish the post of Sthiradhayakshan and to vest his powers and duties in the President of the Seva Sangham. Kailasanatha allegedly served as Sthiradhayakshan since 1996 onwards. It was stated that while he was on pilgrimage, the first respondent claimed himself to have taken over the office of Madathipathi and Sthiradhyakshan of the Ashram, although he had allegedly numberqualification therefor. It is number in dispute that in relation to the affairs of the trust a suit being O.S. No. 30 of 2002 is pending in the Court of Munsif, Kolencherry. The said suit has been filed by one G. Parameswaran Nair, founder member of the Ashram questioning the aforementioned purported resolution dated 7.1.2001. An interlocutory application has been filed by Brahmasree Kailasa Nadananda Teertha Padar for getting himself impleaded as a party. The said applicant in his impleadment application alleges that as per the byelaws, he had admittedly been serving in the said capacity since 1995 and, thus, in law companytinues to be the Madathipathi and Sthiradhyakshan. Indisputably, the said applicant as also the first respondent herein are parties in the suit being O.S. No. 30 of 2002. Thought the suit filed by the first respondent was dismissed, he filed a writ petition before the Kerala High Court at Ernakulam praying for police protection which was marked as WP C No.16047/04. A Division Bench of the said High Court went into the question as to whether the first respondent was entitled to hold the office of Madathipathi and Sthiradhyakshan for the purpose of issuing an appropriate direction as regard grant of police protection. The High Court opined that the State and the police officials have got a legal obligations to give protection to the life and properties of the appellant upon arriving at a finding of fact that he was entitled to hold the said office. The High Court proceeded to determine the said purported question in the light of Article 21 of the Constitution of India and opined Respondent 5 and 6 have number given adequate and effective police protection in spite of repeated requests which only paved the way of the companytesting respondents and others to take law into their hands and act companytrary to the terms of the trust deed. Such being the companyduct of the respondents, their assertion that Ext. P3 is fabricated by the petitioner cannot be believed. Going by the facts and circumstances of the case, and on going through the materials placed before us, we are inclined to accept the averment made by the petitioner that he is Sthiradhyakshan and Madathipathy of the Ashramam. It was directed We have therefore numberhesitation to allow this writ petition giving direction to respondent 5 and 6 to give adequate and effective police protection to safeguard the interest of the petitioner being the Sthiradhyakshan and Madathipathy of the Vadayampadi Ashramam. Petitioner be given effective police protection so as to discharge the function as Sthiradhyakshan and Madathipathy as per Ext. P1 trust deed for his peaceful residence in the Ashramam Aggrieved thereby the Appellant is before us. Mr. T.L.V. Iyer, learned senior companynsel appearing on behalf of the petitioner and Mr. P Krishnamurthy, learned senior companynsel appearing on behalf of the applicant in the impleadment application submitted that the High Court exceeded its jurisdiction in doing so. Mr. K. Radhakrishnan, learned senior companynsel appearing on behalf of the respondent number1, on the other hand, took us through various documents referred to by the High Court in its impugned judgment for the purpose of showing that having regard to the resolution dated 20.1.1996, the respondent number1 was entitled to function in the capacity of Madathipathi and Sthiradhyakshan. Our attention was also drawn to the fact that the first respondent was ordained therefor and, thus, he companyld number be removed from the post of Sthiradhyakshan and Madathipathy as per the terms of the trust. The question is a companytentious one. Construction of the said trust and the rights and obligations thereunder were in question. The first respondent filed a suit in that behalf. The said suit was dismissed. In terms of Order 9 Rule 9 of the Code of Civil Procedure another suit would number be maintainable at his instance. We have numbericed herein before that another suit being O.S. No. 30 of 2002 is pending in the companyrt of the Munsif. The High Court, despite numbericing the said fact, sought to usurp the jurisdiction of the civil companyrt. It, as numbericed hereinbefore, determined the companytentious issues which were required to be proved in terms of the provisions of the Indian Evidence Act. It is one thing to say that in a given case a person may be held to be entitled to police protection, having regard to the threat perception, but it is another thing to say that he is entitled thereto for holding an office and discharging certain functions when his right to do so is open to question. A person companyld number approach the High Court for the purpose of determining such disputed questions of fact which was beyond the scope and purport of the jurisdiction of the High Court while exercising writ jurisdiction as it also involved determination of disputed questions of fact. The respondent number1 who sought to claim a status was required to establish the same in a companyrt of law in an appropriate proceeding. He for one reason or the other, failed to do so. The provisions of Order 9 Rule 9 of the Code of Civil Procedure stares on his face. He, therefore, companyld number have filed a writ petition for getting the self same issues determined in his favour which he companyld number do even by filing a suit. Indeed the jurisdiction of the writ companyrt is wide while granting relief to a citizen of India so as to protect his life and liberty as adumbrated under Article 21 of the Constitution of India, but while doing so it companyld number companylaterally go into that question, determination whereof would undoubtedly be beyond its domain. What was necessary for determination of the question arising in the writ petition was number the interpretation of the document alone, but it required adduction of oral evidence as well. Such evidence was necessary for the purpose of explaining the true nature of the deed of trust, as also the practice followed by this trust. In any event, the impleading applicant herein, as numbericed hereinbefore, has raised a companytention that he alone was ordained to hold the said office as per the byelaws of the trust. The qualification of the first respondent to hold the office was also in question. In this view of the matter, we are of the opinion that such disputed questions companyld number have been gone into by the High Court in a writ proceeding. Furthermore, the jurisdiction of the civil companyrt is wide and plenary. In a case of this nature, a writ proceeding cannot be a substitute for a civil suit.
civil appellate jurisdiction civil appeal number 1842 of 1981. from the judgment and order dated30.4.1981 of the delhi high companyrt in s.a.o. number 418 of 1978. mrs. shyamala pappu h.k. puri and s.d. lal for the appellant. dr. y.s. chitale s.n. kacker mukul mudgal and n.s. das bahl for the respondent. the judgment of the companyrt was delivered by pathak cj. this is a tenants appeal arising out of proceedings for her ejectment. the respondent as landlord of the premises let to the appellant filed a petition for her eviction on the ground set forth in s. 14 1 h of the delhi rent companytrol act 1958 that is to say that the appellant had acquired vacant possession of a residence after the company- mencement of the act viz her own house d-196 defence colony new delhi and was therefore liable to hand over possession of the rented premises occupied by her to the respondent. it was alleged that the appellant had acquired vacant possession of her house on 20 numberember 1973 after the premises in suit had been let out to her on april 1971. the appellant denied that she was liable to ejectment. the assistant rent companytroller delhi and the rent control tribunal companycurrently held that the appellant was owner of house d-196 defence companyony new delhi that on 20 numberember 1973 the previous tenant had vacated the premises and handed over vacant possession and that thereafter she had sold it to one smt. leela wati on 24 numberember 1973. it was observed that during the period 20 numberember 1973 to 24 numberember 1973 it must be taken that she was in possession of alternative accommodation. it was also held companycurrently that even though on the date the petition for eviction was filed the house d-196 defence colony new delhi was numberlonger in the occupation of the appellant it was sufficient for the purpose of s. 14 1 h that some time prior to the filing of the eviction petition the appellant had obtained possession of the house. the high court endorsed the view taken by it earlier in hem chand baid v. smt. prem wati parekh. air 1980 delhi 1 and in the view that the ground for ejectment had been made out when the eviction petition was filed it dismissed the appeal. in this appeal it is urged on behalf of the appellant that before the earlier tenant of tile appellant had vacated the house the appellant had already entered into an agree- ment to sell the house to anumberher person and that therefore in the presence of that obligation it was number possible to say that when the house was vacated the appellant was enti- tled to enter into and to companytinue in possession of the house. it is companytended before us that before the original tenant vacated the house there was an oral agreement between the appellant and smt. leela wati to sell the house to smt. leela wati and that the agreement was only formalized in a written document on 24 numberember 1973. it is urged that when the original tenant vacated the house on 20 numberember 1973 the appellant was under a legal obligation to sell the house to smt. leela wati and that in the circumstances the house cannumber be said to companystitute alternative accommodation for the purpose of s. 14 1 h of the act. the rent companytrol tribunal has found against the existence of any such oral agreement. upon that it would seem that it was only after obtaining possession on 20 numberember 1973 from the original tenant that is four days later that the appellant execut- ed an agreement for sale with smt. leela wati.
CIVIL APPELLATE JURISDICTION Civil Appeals No323 and 324 of 1956. Appeal from the judgment and orders dated April 27, and July 13, 1956, of the Madras High Court in Writ Appeals Nos. 42 and 88 of 1956 arising out of the orders dated March 23, and July 9, 1956, of the said High Court in Writ Petitions Nos. 333 and 564 of 1956. V. Viswanatha Sastri, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant. Daphtary, Solicitor-General of India,, R. Gan. pathy Iyer and R. Gopalkrishnan, for respondents Nos. 3 and 4. 1957. February 19. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-These are appeals against the judgment of the High Court of Madras on a certificate given under Art. 133 1 c of the Constitution, and they raise a question of some importance as to the true legal character of a permit when it is renewed under the provisions of the Motor Vehicles Act, 1939 IV of 1939 hereinafter referred to as the Act. In order to appreciate the companytentions of the parties, it is necessary to state the material facts leading up to the present dispute. Towards the end of 1952, the appropriate authorities under the Act decided to grant two additional permits for stage carriages in the Ondipudur-Agricultural College route in the town of Coimbatore in the State of Madras,, and invited applications therefor under s. 57 of the Act. There were as many as 39 applicants, and by his order dated December 3, 1952, the Regional Transport Authority granted one permit to applicant No. 24, the Thondamuthur Trading Company Ltd., and another to applicant No. 30, the V.C.K. Bus Service. There were appeals by some of the unsuccessful applicants to the Central Road Traffic Board, which by its order dated February 19, 1953, set aside the order of the Regional Transport Authority and granted the permits, one to Stanes Transports Ltd., and another to Thirumalaiswami Goundar. Revisions were preferred against this order by the aggrieved applicants under s. 64-A of the Act, and by its order dated July 9, 1953, the Government companyfirmed the grant of the permit to Stanes Transports ,Ltd., but set aside the permit given to Thirumalaiswami Goundar, and granted it instead to Annamalai Bus Transport Ltd. Thereupon, applicants Nos. 24 and 30 moved the High Court of Madras under Aft. 226 for a writ of certiorari to quash the order of the Central Road Traffic Board dated February 19, 1953 and of the Government dated July 9, 1953 but the applications were dismissed by Rajagopala Ayyangar J. on March 8, 1954. Against the orders of dismissal, Writ Appeals Nos. 31 and 32 of 1954 were preferred, and they were dismissed by Rajamannar C. J. and Panchapakesa Ayyar J. on March 21, 1956. It should be mentioned that the operation of the order dated February 19, 1953 was stayed pending the disposal of the revision under s. 64-A and the writ proceedings in the High Court, with the result that both Thondamuthur Trading Company Ltd. and V.C.K. Bus Service which had been granted permits by the Regional Transport Authority on December 3, 1952, companytinued to run their buses numberwithstanding cancellation of those permits on February 19, 1953. It should also be mentioned that in June 1954 the business of the V.C.K. Bus Service which was the grantee of one of the permits under the order of the Regional Transport Authority dated December 3, 1952, was taken over by a Company called the V.C.K. Bus Service Ltd., which is the appellant before us, and by an order of the Regional Transport Authority dated July 7, 1954, it was recognised as the transferee of the permit granted to V.C.K. Bus Service. To companytinue the narrative, the permit which was the subjectmatter of the litigation aforesaid was for a period of one year and a half, and it expired on June 30, 1954. Before its expiry, the appellant applied on April 15, 1954, for a renewal thereof for a period of three years. This application was duly numberified under s.57, and objections to the grant were preferred by both Stanes Transports Ltd., and Annamalai Bus Transport Ltd. On September 5, 1954, the Regional Transport Authority granted a permit to the appellant for a period of one year from July 1, 1954 to June 30, 1955, obviously in the expectation that Writ Appeals Nos. 31 and 32 of 1954 would by then have been decided. On March 19, 1955,the appellant again applied for a renewal of the permit, and that was also numberified under s. 57, and numberobjections having been filed to the grant thereof, the Regional Transport Authority by his order dated June 23, 1955, renewed the permit for a period of three years from July 1, 1955 to June 30, 1958. It is this permit that forms the subject-matter of the present litigation. It has been already stated that Writ Appeals Nos. 31 and 32 of 1954 were dismissed on March 21, 1956. Apprehending that the Regional Transport Authority might, in view of the judgment of the High Court, cancel the permit which was renewed on June 23, 1955, the appellant filed Writ Petition No. 333 of 1956 for a Writ of Prohibition restraining the Regional Transport Authority from Cancelling the permit, and that was dismissed by Rajagopala Ayyangar J. on the ground that when the original permit was set aside, the renewal thereof fell to the ground. The appellant filed Writ Appeal No. 42 of 1956 against this order, and that was heard by Rajamannar C. J. and Panchapakesa Ayyar J. who by their judgment dated April 27, 1956, held, following a previous decision of that Court in K. Muthuvadivelu v. Regional Transport Officer 1 that the renewal having been obtained on the basis of a permit which had been subsequently cancelled, it companyld number be regarded as a fresh permit, that when the original permit was set aside, it must be taken to be number est for all purposes, and that the renewal must therefore be held to be a nullity. In the result, they dismissed the appeal, but granted a certificate under Art. 133 1 c , observing that the case raised a point of general importance, which was stated by them in these terms When an application for renewal of a permit is made and granted and eventually it is held that the original permit was itself wrongly granted, does the renewed permit subsist for the period for which it was renewed, or does it automatically cease to be in force when it is finally decided that the original permit was number granted validly ? This matter number companyes before us in Civil Appeal No, 323 of 1956. After the High Court delivered its judgment in Writ Appeal No. 42 of 1956 on April 27, 1956, the respondents herein, viz., Stanes Transports Ltd., and Annamalai Bus Transport Ltd., applied to the Regional Transport Authority to grant them permits in accordance with the decisions of the High Court, and on May 5, 1956, the Regional Transport Authority cancelled the permit granted by him on June 23, 1955, in favour A.I.R. 1956 Mad. 143. of the appellant, and granted permits instead to the respondents. Thereupon, the appellant filed Writ Petition No. 554 of 1956 for a writ of certiorari to quash the order dated May 5, 1956, on the grounds which had been put forward in Writ Petition No. 333 of 1956 and Writ Appeal No. 42 of 1956. That petition was dismissed by Rajagopalan J. on July 9, 1956, and the Writ Appeal No. 88 of 1956 filed against that order was dismissed by Rajamannar C. J. and Panchapakesa Ayyar J. on July 13, 1956. Leave to appeal against that judgment was also given under Art. 133 1 c , as the subject-matter thereof was the same as that of Writ Appeal No. 42 of 1956 in respect of which leave had already been granted. Civil Appeal No. 324, of 1956 relates to this matter. Thus, both the appeals relate to the same matter, and raise the same point for determination. Mr. A. V. Viswanatha Sastri, learned companynsel who appeared in support of the appeals, companytends that the view taken by the learned Judges of the High Court that when a permit is set aside by higher authorities, it should be treated as wholly number-existent, and that, in companysequence, a renewal thereof must be held to be void, is number sound, that on a companyrect interpretation of ss. 57 and 58, a renewal is practically in the nature of a new grant, that the permit which was granted to the appellant for the period July 1, 1955 to June 30, 1958, though styled a renewal, was in substance a fresh permit, and that the fact that the old permit was set aside did number therefore affect the rights of the appellant under this permit. He also argues that the Act and the rules framed thereunder companytain elaborate provisions as to when a permit companyld be cancelled, forming in themselves a companyplete companye on the subject, that the cancellation of the original permit is number one of the grounds on which a renewed permit companyld be set aside, and that the order of the Regional Transport Authority dated May 5, 1956, was therefore ultra vires. The companytention of the learned Solicitor-General for the. respondents is that when a permit is renewed, the renewal is, on a true companystruction of the provisions of the Act, in substance as in name a companytinuation of the previous permit, and that, in companysequence, when the, grant of a permit is set aside by a higher authority, the renewal thereof must also stand automatically set aside, and that further even if a renewed permit is number to be regarded as a companytinuation of the original permit,, seeing that it is granted on the basis of that permit it should be held to be subject to an implied term that it should cease if the original permit is cancelled. The two points that arise for decision on these companytentions are 1 when a permit is renewed, is it a companytinuation of the original permit, or is it, in fact, a new one? and 2 if a renewed permit is number a companytinuation of the original permit, is the grant of it subject to the implied companydition that it is liable to be cancelled, if the original permit is cancelled ? On the first question, it is necessary to refer to certain provisions of the Act material thereto. Section,57 prescribes the procedure to be followed in the grant of stage carriage permits. Under sub-s. 2 , applications therefor have to be made number less than six weeks before the date appointed by the Regional Transport Authority therefor. Sub-section 3 requires that they should be published in the prescribed manner, and provision is made for representations being made in companynection therewith. When any representation is so received, sub-s. 5 provides that the person making it is to be given an. opportunity of being heard thereon in person or by a, duly authorised representative, and that the application for permit is to be disposed of at a public hearing. Section 58 deals with renewals, and is as follows A permit other than a temporary permit issued under section 62 shall be effective without renewal for such period, number less than three years and number more than five years, as the Regional Transport Authority may in its discretion specify in the permit Provided that in the case of a permit issued or renewed within two years of the companymencement of this Act, the permit shall be effective without renewal for such period of less than three years as the Provincial Government may prescribe. A permit may be renewed on an application made and disposed of as if it were an application for a permit Provided that, other companyditions being equal, an application for renewal shall be given preference over new applications for permits. The companytention of the learned companynsel for the appellant based on s. 58 2 is that under the Act an application for renewal is to be dealt with exactly as an application for a new permit, that it is to be numberified under s. 57 and representations have to be called for in companynection herewith and companysidered at a public hearing, that though the grant of the previous permit furnishes a ground of preference, it is subject to the limitation that the other companyditions are equal and is thus only one of several factors to be taken into account, and that therefore when a renewal is actually granted, it is on an independent companysideration of the merits and it cannot be distinguished from a fresh grant. It was further argued that the proviso to s. 58 2 meant little, because it was well established that the grant of a permit was number a matter of right, and the authorities under the Act would be acting within their powers if they refused an application for renewal and granted a fresh permit to a new applicant. It was also companytended that though the statute spoke of a renewal of a permit, that expression did number accurately bring out the true position, because in legal terminology, renewal imports that the transaction which is renewed, as for example, a lease, is to operate for a further period but on the same terms, but that when a permit was renewed, it was open to the authorities to impose new companyditions, to alter the period during which it was to operate and generally to modify its terms, and that therefore the use of the word ,renewal should number lead to the. inference that it was the original permit that was being companytinued. There is force in these companytentions, but there are other provisions bearing on this question, and when they are reviewed as a whole, it is abundantly clear that the intention of the legislature was to treat a renewal as a companytinuation of the previous permit. To start with, s. 58 1 enacts that a permit shall be effective for the period specified therein, but this is qualified by the words without renewal . Therefore, when there is a renewal, the effective period is number the original period specified, but the period up to which the renewal is granted. That indicates that the life of a renewed permit is one and companytinuous. The matter is placed beyond doubt when we turn to the rules which have been framed under the Act. Rule 184 1 provides that when a renewal is granted, it shall be endorsed on the permit itself, and Form No. 33, which is prescribed therefor is as follows This permit is hereby renewed up to the day of 19 Thus, what is renewed is this permit. In this companynection, reference must be made to the definition of permit in s. 2 2 of the Act as the document issued by a Provincial or Regional Transport Authority Rule 1985 is very material for the purpose of the present discussion, and it runs as follows If an application for the renewal of a permit has been made in accordance with these rules and the prescribed fee paid by the prescribed date, the permit shall companytinue to be effective until orders are passed on the application or until the expiry of three months from the date of receipt of the application whichever is earlier. If orders on the application are number passed within three months from the date of receipt of the application, the permit-holder shall be entitled to have the permit renewed by the Transport Authority for the period specified in the application or for one year whichever is less and the Transport Authority shall call upon the permit-holder to produce the registration certificate or certificates and Part B or Parts A and B of the permit, as the case may be, and endorse the renewal in Parts A and B of the permit accordingly and return them to the permit holder . Under this rule, when an application for renewal is made, the permit already granted is to be in force until an order is passed thereon, and what is more important, if numberorder is passed within three months, the permit becomes automatically renewed for the ,,period mentioned in the rule. This goes a long way to support the companytention of the respondents that on the scheme of the Act, renewal is a companytinuation of the original permit. It should also be mentioned that the rules provide for different forms for an application for fresh permit and one for renewal, and the fee to be paid along with those applications is also different. A reading of the relevant provisions of the Act and of the rules leads indubitably to the companyclusion that a renewal is a companytinuation of the permit previously granted. The fact that the grant of renewal is number a matter of companyrse, or that it is open to the authorities to impose fresh companyditions at the time of renewal does number, when the permit is in fact renewed, alter its character as a renewal. We shall number companysider the authorities cited by learned companynsel for the appellant as supporting the view that a renewal under the Act is in the same position as a fresh permit. In Mahabir Motor Co. v. Bihar State 1 , the point for decision was whether an appeal lay under s. 64 f against an order granting a renewal of a permit. The companytention before the Court was that the Act made a distinction between the grant of a permit and a renewal thereof, and that as s. 64 f , provided only for an appeal against an order granting a permit, numberappeal lay against an order granting a renewal. In repelling this companytention the Court observed Both grant. and renewal stand more or less on the same footing by reason of ss. 47, 57 and 58 of the Motor Vehicles Act This observation has reference to the procedure to be followed in the renewal of a permit and the right of appeal given under a. 64 as part of that procedure. It has, number-bearing on the character of a permit when it is renewed. Another decision on which the appellant strongly relied is Anjiah v. Regional Transport Officer, Guntur There, the, facts were that an order of suspension had been passed for breach of one of the 1 1556 I.L.R. 34 Patna 429. 2 1956 Andhra Law Times 347. companyditions of the permit. - The companyrectness of the order was challenged before higher authorities, but without success. Meantime, the period fixed in the permit had expired, and it had been renewed. The question was whether the period of suspension companyld be enforced against the renewed permit. It was held by the Andhra High Court that it companyld number be, because the renewal was, in essence, a new permit and number a mere companytinuance of the old one. The reason for this decision was thus stated in the judgment There is numberright of renewal as such and when a permit is renewed, there is numberright either, on the part of the permit-holder to insist upon the companytinuance of the old terms. It would be undesirable that there should be any such restrictions upon the right of the authorities to grant the permit to anybody they choose or subject to any companyditions that they think -it to be necessary to impose, provided that they are acting all the time in the public interest and subject to the provisions of the Motor Vehicles Act and the. Rules made thereunder. These companysiderations, though number without force, can. number, in our opinion, outweigh the inference to be drawn from the other provisions to which we have made reference and for the reasons already given, we are unable to agree with this decision. In the view that we have taken that under the provisions of the Act and the rules, a renewal is a companytinuation of the original permit, there can be numberdoubt as to what the rights of the appellant are. When the proprietor of V. C. K. Bus Service was granted a permit by the Regional Transport Authority on December 3, 1952, that grant was subject to the result of the decision of the higher authorities. On September 5, 1954, when the permit was renewed in favour of the appellant, that was subject to the decision of the High Court in Writ Appeal No. 32 of 1954, which was then pending. When the renewed permit dated September 5, 1954, was again renewed on June 23, 1955, that was likewise subject to the result of the decision in Writ Appeal No. 32 of 1954. When the High Court by its judgment dated March 21, 1956, passed in the said Writ Appeal upheld the cancellation of the permit which had been granted by the Regional Transport Authority on December 3, 1952 to V. C. K. Bus Service, the permit renewed on June 23, 1955, became ineffective at least as from that date. The Regional Transport Authority was therefore right in treating it as having become void, and granting by his order dated May 5, 1956, permits to the respondents. The second question arises on the alternative companytention advanced by the respondents that even if the renewal is to be regarded, number as a companytinuation of the original permit but as an independent grant, it must be held to have been subject to an implied companydition that if the original permit is ultimately set aside, the renewal thereof should companye to an end. Mr. Sastri, learned companynsel for the appellant, disputes the companyrectness of this companytention. He argues that when there is a document embodying the terms of a companytract, it is number permissible to imply therein a companydition, if that will companytradict or vary any terms companytained in it, that to read into the permit a companydition that it is to cease if the decision of the High Court went against the appellant, would be to modify the terms companytained therein that it is to be effective upto June 30, 1958, and that it companyld number therefore be implied. He also relies on the following observation of Lord Parker in P. A. Tamplin Steamship Company Limited v. AngloMexican Petroleum Products Company Limited 1 This principle is one of companytract law, depending on some term or companydition to be implied in the companytract itself and number on something entirely dehors the companytract which brings the companytract to an end. It is, of companyrse, impossible to imply in a companytract any term or companydition inconsistent with its express provisions, or with the intention of the parties as gathered from those provisions. It is undoubted law that when the terms of a companytract or grant are reduced to writing, numbercondition can be implied therein, which will be inconsistent with its express terms. But the companytention of the respondents 1 1916 2 A.C. 307, 422. involves numberconflict with this principle. They do number seek to obtain any modification or alteration of the terms of the permit, -leaving it to operate subject to such modification or alteration. They want that the whole permit with all its terms as to duration and otherwise should be held to have become inoperative. What they are pleading is a companydition subsequent on the happening of which the permit will cease, and to that situation the observation quoted above has numberapplication. Reference may be made in this companynection to the following observation occurring later in the speech of Lord Parker in F. A. Tamplin Steamship Company Limited v. Anglo-Mexican Petroleum Products Company, Limited supra Moreover, some companyditions can be more readily implied than others. Speaking generally, it seems to me easier to imply a companydition precedent defeating a companytract before its execution has companymenced than a companydition subsequent defeating the companytract when it is part performed. Thus, there is numberlegal obstacle to implying a companydition that the renewal should stand cancelled if the right of the appellant to the original permit was negatived by the High Court. That brings us on to the question of fact, whether on an examination of the permit and of the circum. stances under which it came to be granted, we can infer that it was the intention of the Regional Transport Authority to renew the permit subject to the result of the decision of the High Court in the appeal which was then pending before it. The permit granted to the V. C. K. Bus Service on December 3, 1952, had been cancelled on February 19, 1953, and it was only by reason of the stay orders that the bus was permitted to run. When the appellant applied for renewal on April 15, 1954, there was opposition to the grant thereof from both the respondents herein, based on the decision of the Government dated July 9, 1953, and it was in view of their objection that the Regional Transport Authority renewed the permit for one year from July 1, 1954 to June 30, 1955. It is true that when the appellant applied again for renewal on March 19, 1955, the respondents did number raise objection thereto, but as the appeals in the High Court were still pending, they had good reason to believe that the renewal would number affect whatever rights might be declared in their favour by the High Court. As all the papers relating to the grant of the original permit and the subsequent proceedings were part of the record before the Regional Transport Authority when he renewed the permit on June 23, 1955, it is impossible to resist the companyclusion that he really intended to renew the permit only subject to the decision of the High Court. It is of the utmost importance in this companynection to bear in mind that the appellant applied number for a fresh permit but for a renewal, and in sanctioning it, the Regional Transport Authority expressly acted in exercise of his powers under Rule 134-A read with s. 58 of the Act, and if he did number expressly provide that it was subject to the decision of the High Court, it must be because he must have companysidered that that was implicit in the fact of its being only a renewal. That that is how the appellant understood it is clear beyond doubt from the proceedings taken by it immediately after the High Court pronounced its judgment. But it is argued for the appellant on the strength of the decision in Veerappa Pillai v. Raman Raman Ltd. 1 that the mere knowledge on the part of the authorities that the rights of the parties were under litigation is number a sufficient ground to import a companydition in the permit that it is subject to the result of that litigation, when in its terms it is unconditional. We do number read that decision as authority for any such broad companytention. There, the question related to five permits, which had been originally granted to one Balasubramania. Raman and Raman Ltd. obtained a transfer of the relative buses, and applied to the transport authorities for transfer of the permits to itself. Then, Veerappa having subsequently obtained a transfer of the same buses from Balasubramania, 1 1952 S.C.R. 583. applied to have the permits transferred in his name. On October 3, 1944, he also instituted a suit in the Sub-Court, Kumbakonam, to establish his title to the buses against Raman and Raman Ltd., and that was decreed in his favour on May 2, 1946. Raman and Raman Ltd. appealed against this decision to the Madras High Court, which by its judgment dated September 2, 1949, reversed the decree of the Sub- Court and held that it was entitled to the buses. While these proceedings were going on, the transport authorities suspended on March 28, 1944, the permits which had been granted to Balasubramania and instead, they were issuing temporary permits from time to time to Veerappa, who had been appointed receiver in the suit in the Sub-Court, Kumbakonam. On March 29, 1949, the Government decided to discontinue the policy of granting temporary permits indefinitely, and accordingly granted permanent permits, to Veerappa. Then on October 14, 1949, Veerappa applied for renewal of these permanent permits, and that was granted by the Regional Transport Authority on January 3,1950. The question was whether this order was bad on the ground that it was inconsistent with the decision of the High Court that it was Raman and Raman Ltd., that had obtained a valid title to the buses. This Court held that the ownership of the buses was only one of the factors to be taken into account in granting the permits, and that as the Regional Transport Authority granted the renewal on an appreciation of all the facts, his decision was number liable to be questioned in proceedings under Art. 226. It should be numbered that the renewal which was granted on January 3, 1950, was of permanent permits granted in pursuance of the, order of the Government dated March 29, 1949, which had quite plainly declared as a matter of policy that numberwithstanding the pendency of litigation between the parties, permanent permits should be granted to Veerappa. There can be numberquestion of implying thereafter a companydition that they were subject to the decision of the Court. Moreover, the renewal was granted on January 3, 1950, after the litigation had ended on September 2, 1949, and any attack on that order companyld only be by way of appeal against it, and that had number been done, We are of opinion that the decision in Veerappa Pillai v. Raman Raman Ltd. 1 is of numberassistance to the appellant. In the result, we affirm the decision of the High Court both on the ground that the renewal dated June 23, 1955, is a companytinuation of the permit granted on December 3, 1952, and must fall to the ground when that stood finally set aside by the judgment of the High Court in Writ Appeal No. 32 of 1954 dated March 21, 1956, and on the ground that it was an implied companydition of that renewal that it was to be subject to the decision of the High Court in that appeal, and that in the event which had happened, it had ceased to be effective. These appeals fail, and are dismissed with companyts in Civil Appeal No.
The Revenue is in appeal against the order of the Customs, Excise and Gold Control Appellate Tribunal, New Delhi. The Tribunal has held that the monomer castings produced by the respondents directly from caprolactum are number classifiable as articles of plastic under Item 15A 2 of the Central Excise Tariff but are classifiable under the residuary Tariff Item 68. In doing so, the Tribunal has, inter alia, relied upon the Tariff Advice issued on 27th November, 1980, by the Central Board of Excise and Customs which states, the Board is of the opinion that monomer castings produced directly from caprolactum are number classifiable as articles of plastics under Item 15A 2 of Central Excise Tariff and the same are properly classifiable under Item 68 of Central Excise Tariff.
K.SIKRI, J. Leave granted. By means of these appeals the appellant challenged the judgment and order dated 29.05.2013 passed by the High Court of Judicature at Allahabad in Second Appeal Nos. 622 of 2013 and 623 of 2013 whereby the High Court has allowed these appeals of the respondent and set aside the judgment and decree that was passed by the Trial Court in favour of the appellant and also upheld by the First Appellate Court. The chronology of the events is as under Signature Not Verified Digitally signed by ASHWANI KUMAR Date 2018.06.28 144255 IST Reason The respondent started running the business of Flour Mill, Oil Mill and Expeller, Ice Factory etc. which were operated on electricity from his residential accommodation. The appellant, who is an advocate, is the owner and resident of the adjoining house, which has a companymon wall with the house of the respondent. According to the appellant, from the year 2003 the respondent started operating the above said flour mill with machines, on diesel engine, which started causing severe vibrations and air pollution. The vibrations caused by the machines cracked the wall of the appellant and the pollution emitted was detrimentally affecting the health of the appellant and his family members. The appellant being an advocate also runs his chambers from his residence and, therefore, the severe vibration and air pollution also started adversely affecting his professional activities. Due to the aforesaid harassment and nuisance the appellant made a companyplaint to the Sub-Divisional Magistrate, who directed the Administrative Officer to file his report on the companyplaint of the appellant. The Administrative Officer, after enquiry, submitted his report on 02.12.2003. Upon the report filed by the Administrative Officer, the Sub-Divisional Magistrate directed the Station House Officer to investigate the matter. The SHO directed the respondent to stop the nuisance and pollution but the respondent did number companyply with the said direction. At that stage, the respondent filed Original Suit No. 2518/2003 against the appellant wherein the respondent prayed for perpetual injunction against the appellant from interfering in the running of the business of the respondent. Thereafter the appellant also filed Original Suit No. 26/2004 against the respondent wherein the appellant prayed for perpetual injunction against the running of the business of the respondent which was causing nuisance and pollution. After the trial, the suit of the appellant was decreed and the Trial Court passed a decree of permanent injunction dated 03.12.2012 prohibiting the respondent from operating the said machines and from spreading air and numberse pollution. On the other hand, suit filed by the respodnent was dismissed vide decree of the same date. The respondent being aggrieved by the judgments and decree passed by the Civil Judge Junior Division Sakri, Allahabad filed Civil Appeal No. 206/2012 and 207/2012 before the Additional District Judge, Court No.2, Allahabad. The Additional District Judge, Allahabad passed a companymon companyfirmatory judgment and decreed dated 25.02.2013 in Civil Appeal Nos. 206 and 207 of 2012 observing that The house of the respondent is adjacent to appellants house and there was a wall of 4 breadth between the two houses. ii. The respondent has a business of Flour Mill, Oil Mill and expeller, Ice factory etc. and he uses the said machines on diesel. iii. The respondent started his business in 1990 but at that time his machines were operated on electricity. iv. In 2003 the respondent started using expeller machine etc. which was operated on diesel which produced a lot of vibrations and air and numberse pollution. Because of a vibrations caused by the said machines the wall on the appellants side cracked at many places. vi. The running of his business is detrimental to the health of the appellant and his family. vii. The oral evidences of the witnesses made it clear that the machines used by the respondent caused vibrations and emitted air and numberse pollution. viii. It was admitted by the respondent that the machines caused air and numberse pollution. ix. The running of said business came under the ambit of private nuisance and that such activities should number be carried out in residential areas as it is detrimental to physical and mental health of people at large. The defence of volunti number fit injuria does number sustain as when the appellant started living in this house in 1990 the respondent was operating the machines on electricity and it was in 2003 that the respondent started operating the machines on diesel which caused vibrations and pollution. xi. The appellant is entitled to perpetual injunction against the respondent. Being aggrieved by the judgment and decree in Civil Appeal No. 206/2012 and 207/2012 passed by the Additional District Judge, Allahabad, the respondent filed Second Appeals Nos. 622/2013 and 623/2013 before the Allahabad High Court. The High Court has been pleased to allow both the Second Appeals and set aside judgments and decree dated 03.10.2012 passed by the Civil Judge Junior Division , Sakri, Allahabad and 25.02.2013 passed by the Additional District Judge, Court No. 2, Allahabad and also dismissed Original Suit No. 26/2004. A perusal of the judgment of the High Court shows that it is number tinkered with any of the findings recorded by the Trial Court and affirmed by the first appellate companyrt. On the companytrary, the substantial question of law which was formulated by the High Court pertains to the limitation in filing the suit which reads as under Whether the suit in question was barred by time inasmcuh as prayer sought in the plaint shows that cause of action arose in 1990 though the suit was filed in 2004 and admittedly the period of limitation is only three years. According to the High Court the evidence on record shows that the Atta Chakki was installed initially in 1990, but numberinconvenience was felt by the appellant herein and, therefore, he did number make any companyplaint. The only explanation is that at that time the respondent was running the aforesaid machine with electricity which was number causing pollution or any inconvenience and since from the year 2003 the respondent started using diesel generator set DG Set , the smoke and numberse created by DG Set has caused serious air and other pollution. This explanation has number been found to be companyvincing by the High Court. Thus, influenced by the fact that the Atta Chakki was started in 1990 and the suit was filed 14 years thereafter, i.e. in the year 2004, it was held to be time barred. After hearing the learned companynsel for the parties, we do number find ourselves in agreement with the approach of the High Court. It may be numbered that in the first instance numbersuch plea was taken up by the respondent in the written submissions filed by him to the suit which was filed by the plaintiff appellant and numberissue on limitation came to be casted. Obviously, in the absence of any such issue framed, the parties did number lead any evidence. No doubt, even in the absence of any specific issue of limitation, by virtue of Section 3 of the Limitation Act, power is cast on the Court to see whether the suit is within limitation or time barred. However, such a plea companyld have been taken by the respondent in the Second Appeal before the High Court only if the issue of limitation was raised as a pure question of law. In the instant case, we find it to be a mixed question of law and fact and, therefore, it companyld number have been entertained by the High Court for the first time in the second appeal filed by the respondent. That apart, even on merits we find blemish in the approach of the High Court. There are at least two reasons for that which are as under The explanation given by the appellant was justified. He had categorically stated that nuisance started in operating the said Atta Chakki Floor Mill when the respondent had installed DG Set in the year 2003 as it emitted smoke thereby creating air pollution and had also started creating numberse pollution. Therefore, the cause of action for filing the suit was the installation of DG Set which was installed in the year 2003. The suit was filed in the year 2004 and was, thus, well within time. Furthermore, we find that the High Court has taken a very myopic view of the matter. The findings of fact which were recorded by the companyrts below were clear to the effect that after the use of DG Set by the respondent and because of the vibration created by it and the machines run through it, cracks on the wall of the appellant side developed at many places. This has happened after 2003. Another categorical finding is that running of the business is detrimental to the health of the appellant and his family.
K. Mukherjea, J. This appeal by special leave from an order of the High Court of Himachal Pradesh dismissing a writ petition of the appellant companycerns a young companylege boy who is number in the unhappy position where at least two years of his academic life are found to have been wasted in very unfortunate circumstances. The short facts of the case are as follows. The appellant-petitioner hereinafter described merely as petitioner passed the Class X examination in 1970 from Bishop Cotton School, Simla. On 31 July 1970 the petitioner applied for admission to Government College, Bilaspur Himachal Pradesh in Class XI which is ordinarily called the Pre-University class. The petitioner claims that he was duly admitted on 31 July 1970 while the respondents maintain that he was only provisionally admitted on that date. The following numberes and endorsements appear on the admission form of the petitioner submitted by him for admission to the Pre-University class Since the candidate has number submitted the required documents as per letter attached by 15-8-70 and as such his admission may be cancelled. Sd - initialled. 14-8-70 Yes. Initialled. 14-8-70 Admit provisionally subject to documents. Initialled. Nothing turns on this companytroversy for, in any case, it is quite clear that the petitioner was in law under an obligation to produce the eligibility certificate and the Inter-University Migration Certificate before he companyld be lawfully admitted to the Bilaspur College. It appears that on 12 August 1970 the petitioner was formally asked to produce the above-mentioned documents and was told that failing such production his admission was to be treated as cancelled. The documents were furnished only on 13 October 1970. In the meantime, however, the petitioner was treated as if he had been admitted provisionally subject to the production of the documents. On 24 December 1970 the petitioner migrated to Government. College, Dharamsala. He had the necessary permission of the University for this migration. The petitioner companyplains that just one day before he was to sit for the Pre-University examination, the Principal of Government College, Dharamsala informed his father over the telephone that the petitioner had number attended the requisite number of classes while he was at Bilaspur College. On the same day the petitioner filed an affidavit to the effect that he had attended all the classes regularly at Bilaspur and that he was number falling short of lectures in English, Economics, History and Civics. He declared further that he had attended more than 75 per cent of the lectures delivered in each of these subjects in the Pre-University class in Government College. Bilaspur until he migrated to Government College, Dharamsala. Presumably on the basis of this affidavit the petitioner was allowed to sit for the Pre-University examination which companymenced on 20 April 1971. On 21 April 1971 the petitioner was informed by the Principal that he was being permitted to sit for the examination provisionally at his own risk and if it was found that he was short of the required number of lectures his candidature would be cancelled. The Principal of Dharamsala College on the some day wrote a letter to the Principal of Bilaspur College asking for a lecture statement in respect of the petitioner. As a result of this enquiry it transpired that the petitioner was short of the requisite attendance and on 29 April 1971 the Principal of Dharamsala College recommended to the Registrar. Himachal Pradesh University that the candidature of the petitioner should be cancelled and the results obtained by him in the examination to which he had been provisionally admitted were to be quashed. Consequently in June 1971 when the result of the Pre-University examination was announced the petitioners roll number was missing. In July 1971 the petitioner was admitted provisionally to the B.A. Part I class in a companylege at Simla. The petitioner and also his father thereafter approached several authorities for companydonation of the shortage in attendance of lectures. The petitioner was, however, informed by a letter dated 1 December 1971 that the University was number in a position to companydone the shortage. The material portion of the letter dated 1 December 1971 of the Registrar, Himachal Pradesh University is set out hereunder Your kind attention is drawn to Regulation 2 relating to Regulations Condoning of deficiency in lectures of Punjab University Calendar, 1969, Vol. III Page-61 reproduced below If the Principal is number satisfied with the reasons advanced by the candidate, he shall number be bound to companydone the deficiency in lectures and there shall be numberright of appeal against the decision of the Principal in refusing companydonation. In view of this regulation, the University is number in a position to companydone the shortage in question. The petitioner went on making representations and by a letter dated 23 February 1972 the Principal, Government College, Bilaspur informed him categorically that the shortage companyld number be companydoned. Thereafter on or about 10 March 1972 the petitioner filed a writ petition in the Himachal Pradesh High Court. The petition was dismissed in limine. The petitioner was, however, granted special leave by this Court to appeal from that decision and by an interim order the petitioner was permitted to appear in B.A. Part I examination on a provisional basis. It appears that the hearing of the appeal was expedited and on 16 August 1972 this Court directed the University to companysider the petitioners application to B.A. Part II on merit as a result of which the petitioner was admitted to B.A. Part II class pursuant to the order of this Court. The point involved is very short. So far as facts are companycerned, there is little scope for doubt that the petitioner was indeed short of the required percentage of attendance in regard to the lectures in some subjects. The petitioner sought to make out a case that the petitioner has number been given credit for the classes he attended when he was first admitted to the Bilaspur College provisionally subject to the production of certain documents. In paragraph 10 of the petition, the petitioner made out a specific case that the number-counting of the lectures attended by the petitioner during the aforesaid period of 16th of August, 1970, till 13th of October, 1970 was illegal. This has been denied by the respondents. We ourselves had an opportunity of examining the attendance registers and we are satisfied that the lectures attended by the petitioner during this period were companynted while calculating his attendance figures. The companyplaint of the petitioner on this ground is therefore baseless. Mr. Datta appearing for the petitioner tried to make out a case that he had attended some classes between 31 July 1970 and 12 August 1970 and his attendance during this period had number been recorded by the companylege authorities. This is a companypletely new case made up by the petitioner and we cannot take any numberice of it. It is quite possible that number-recording of his attendance during this. period may be explained by the fact that he did number actually attend any class during the period. In any event, the case that he made out in the petition has been denied by the respondents and we are satisfied on examination of the records that the petitioners companyplaint is baseless. The only question that number remains is whether the petitioners deficiency in the matter of attendance companyld be companydoned by any authority. The final lecture statement of the Bilaspur and Dharamsala companyleges shows that the petitioner was short of 20 lectures in Civics, of 18 lectures in Economics, of 10 lectures in History and of 8 lectures in English. Now the rules as to companydoning of deficiency in the matter of attendance of lectures are to be found in Chapter XV of the Punjab University Calendar 1969. Volume III Rules . The relevant rule is 1 a and the material portion of it is in the following terms Taking into companysideration the results of the House examinations The Principal of a College affiliated in the Faculties of Arts, Science and Oriental Learning may companydone the deficiency in lectures as under Upto 15 lectures in each of the subjects Since the petitioners deficiency in the matter of attendance exceeded 18 lectures in Economics and 20 lectures in Civics, it was beyond the jurisdiction or companypetence of the Principal to companydone this deficiency. In our opinion this companypletely destroys the case of the petitioner.
The High Court answered in the affirmative and against the Revenue the following question Whether on the facts and in the circumstances of the case the Tribunal was justified in upholding the finding of the learned C.I.T. A who cancelled the order of the Assessing Officer passed on 18-6-1991 under Section 154 of the Income-tax Act, 1961? The Revenue is in appeal. The order of assessment was made on 30th March, 1990. It was then rectified under Section 154 of the Income-tax Act, 1961 because the assessing officer found that depreciation under the Companies Act had been allowed at Rs. 11,53,374/- whereas it was actually allowable at Rs. 11,38,057/-. He also found that unabsorbed depreciation had been taken at Rs. 12,00,368/- as against unabsorbed loss of Rs. 17,230/-. He was of opinion that there was a mistake apparent from the record and he made the rectification after giving to the assessee the opportunity of being heard. In appeal, the Commissioner of Income-tax Appeals cancelled the order under Section 154. He numbered that the mistake to be rectified had to be apparent from the record it had to be an obvious mistake and number something on which there might companyceivably be two points of view. The Income-tax Appellate Tribunal companyfirmed the view taken by the Commissioner Appeals . On the application of the Revenue, the Tribunal referred the question aforementioned to the High Court and it drew up a statement of case. The High Court answered the reference, as aforestated, in favour of the assessee, holding that the Tribunal and the Commissioner of Appeals were justified in taking the view that numberoccasion for rectification arose. It also opined that these were questions of fact and numberquestion of law arose. We have heard learned Counsel. We do number agree that the question raises a pure question of fact to that extent, the High Court was in error. But it was number in error in companying to the companyclusion that there was numberoccasion for rectification. Under the provisions of Section 154 there has to be a mistake apparent from the record. In other words, a look at the record must show there has been an error, and that error may be rectified.
This appeal is preferred against the judgment of the Gauhati High Court answering the question referred to it against the assessee. The question referred is Whether on the facts and in the circumstances of the case, the assessee i.e., Assam Cooperative Apex Marketing Society Ltd., is entitled to exemption under Section 81 1 c in respect of their income arising out of procurement of paddy and other agriculture produce?. The assessment year companycerned herein is 1962-63, the first assessment year under the Income-tax Act, 1961. During the accounting year relevant to the said assessment year, the appellant. The Assam Co-operative Apex Marketing Society Ltd., Assam was appoint ed as the procuring agent for paddy by the Government under a scheme evolved by the Government of Assam and companytained in its proceeding dated 23rd November, 1962. The assessee is a society registered under the Assam Co-operative Societies Act, 1949. The objects of the Society are to arrange for the sale of produce of the members of affiliated societies and other members to the best advantage. to purchase and sell agricultural produce and farm and farmers requisites including seeds, manures, fertilizers and machinery etc. to act as agent of members for the disposal of their produce and to act as a central purchasing agency for agricultural as well as Consumers Society and for other members. The membership of the assessee society is divided into three classes as follows A-Class companysisting of companyoperative institutions B-Class companysisting of individual cultivators and sympathisers C-Class companysisting of traders companymission agent etc. The State Government. There are various categories of Societies in the State of Assam. We are companycerned with two such categories i.e., Village Service Co-operative Societies and Primary Marketing Societies. The assessee, of companyrse, is at the , apex. The Village Service Co-operative Societies are at the base of the pyramid. Their membership companysists of agriculturists. These Village Societies are the members of the Primary Marketing Societies. The Primary Marketing Societies in turn are members of the assessee society. It does number appear that any agriculturist as such is member of the assessee society. The system of procurement was that the Village Service Co-operative Societies procured agricultural produce from their respective members at the prescribed price and made it over to the Primary Marketing Society. The Primary Marketing Society in turn made over the same to the assessee society. In lieu of this procuring activity, the assessee society was being paid remuneration at the rate of Re. 1/- per maund. This one rupee companymission was divided between the three companyoperative societies. The apex society took 19 paise, the Village Service Co-operative Society was entitled to 19 paise and the remaining 62 paise went to the Primary Marketing Society. In the assessment proceedings, the assessee claimed exemption of its income from the said activity under Section 81 i c , as it then stood. This plea was negatived by the Income-tax Officer but on appeal, the Appellate Assistant Commissioner agreed with the assessee. The revenue went up in appeal to the Tribunal. The appeal was allowed, where upon the assessee obtained the reference aforesaid. Section 81 i read thus Income of companyoperative societies-Income-tax shall number be payable by a companyperative society - in respect of the profits and gains of business carried on by it, if it is a a society engaged in carrying on the business of banking or providing credit facilities to its members or b a society engaged in a companytage industry or c a society engaged in the marketing of the agricultural produce of its members or d a society engaged in the purchase of agricultural implements, seeds, live stocks other articles intended for agriculture for the purpose of supplying them to its members or e a society engaged in the processing without the aid of power of the agricultural produce of its members or f a primary society engaged in supplying milk raised by its members to a federal milk companyoperative society Provided that, in the case of a companyoperative society which is also engaged in activities other than those motioned to this clause, numberhing companytained herein shall apply to that part of its profits and gains as is attributable to such activities and as exceeds fifteen thousand rupees Sub-clause c of Clause 1 exempts the income of a companyoperative society engaged in the marketing of the agricultural produce of its members. The companytention of Sri Parekh, learned Counsel for the assessee appellant is that inasmuch as the assessee has marketed the agricultural produce of its members, namely, the agricultural produce belonging to Primary Marketing Societies, the assessee is entitled to the benefit of the said sub-clause. Learned Counsel submits that the High Court was number right in holding that for obtaining the benefit of the said sub-clause, the agricultural produce by such members Sic . Such an interpretation, according to the learned Counsel, amounts to adding words to the said clause which are number there. We find it difficult to agree with the learned Counsel. A reading of Clause i of Section 81 shows that the idea and intention behind the said clause was to encourage basic-level societies engaged in companytage industries, marketing agricultural produce of its members and those engaged in purchasing and supplying agricultural implements, seeds etc. to their members and so on. The words agricultural produce of its members must be understood companysistent with this object and if so understood, the words mean the agricultural produce produced by the members. If it is number so understood, even a companyoperative society companyprised of traders dealing in agricultural produce would also become entitled to exemption which companyld never have been the intention of the Parliament. The agricultural produce produced by the agriculturist can legitimately be called agricultural produce in his hands but in the hands of traders, it would be appropriate to call it agricultural companymodities it would number be his agricultural produce. Accordingly, it must be held in this case that since the agricultural produce marketed by the assessee was number the agricultural produce produced by its members namely, the Primary Co-operative Society, the assessee cannot claim the benefit of the said exemption. The High Court was right in holding that the benefit of the said sub-clause is number available to the assessee herein. Mr. Parekh then companytended that wherever the Act wanted to provide that it should be the produce raised by the members of such society, it has provided so expressly, as in Sub-clause f , which speaks of milk raised by its members. Counsel says that numbersuch words are found in Sub-clause c , which is an indication of the intention of the Parliament. It is number possible to agree. Sub-clause f speaks of a Primary Co-operative Society engaged in supplying milk to a federal milk Co-operative Society.
L. Dattu,J. This is a petition for special leave to appeal under Article 136 of the Constitution from the judgment and order dated 28.4.2008 of the High Court of Punjab and Haryana, at Chandigarh. We grant special leave and dispose of this appeal. By the judgment and the order impugned, High Court has allowed and remanded all the three Revision Petitions to the Rent Controller, Nakodar, to reconsider all the issues raised in the application filed under Section 18-A of the Act in accordance with law. The factual matrix as asserted by the respondent landlady are the respondent Gurmit Kaur is the owner landlady of the disputed property which was purchased by her vide registered sale deed dated 16.4.1971. The building has four shops and three of which has been let out to the appellants and the fourth shop to one Sri Vijay Kumar. The respondent claiming to be an NRI and being desirous of having possession of the tenanted premises so as to settle down in India, sought eviction of tenants by filing separate petitions under section 13-B of the East Punjab Urban Rent Restriction Act, 1949 against all the four tenants. The tenants appeared in all the four eviction petitions, out of which three are pending before the Rent Controller, Nakodar. The tenants have filed applications for leave to companytest under section 18-A of the act, wherein, they dispute the landlord and tenant relationship and according to them the shops were let out to them by one Gurbachan Singh and number by respondent and the tenants are paying rents regularly to him. Secondly, the respondent was number an NRI at the time of letting out the shop premises and has number acquired the status of an NRI even till today. In the eviction petition filed against one another tenant Vijay Kumar, the respondent had claimed that she is an NRI and has leased out one of the shops in the building owned by her to Vijay Kumar in the year 1990. Since, she has companye back to India, she requires the shop premises for her own use and occupation. By way of defence, it was alleged by Vijay Kumar that he is number the tenant of the disputed shop, and it is his brother Vipin Kumar is the tenant and is running the shop in his own name and, therefore, the proceedings filed under section 13-B of the Rent Act is number maintainable for number-joinder of necessary and proper parties. The Rent Controller, Nakodar, vide its order dated 15.6.2007, without giving any finding with regard to the status of the respondent Gurmit Kaur being NRI or number, had companycluded that the tenancy created in favour of Vijay Kumar stands prima facie proved from the rent deed dated 7.7.1993 and as such there is numbertenancy created in favour of Vipin Kumar and therefore, the petition filed under Section 13-B of the Rent Act by the landlady deserves to be allowed and, accordingly, has directed Vijaya Kumar to deliver the immediate possession of the shop premises to the landlady. In respect of other three petitions, Rent Controller vide its order dated 15.6.2007, has granted to the tenants leave to defend the petition filed by the landlady under Section 13-B of the Rent Act. Aggrieved by the aforementioned order, the respondent landlady had filed revision petitions before the High Court, inter alia, asserting that the learned Rent Controller in the case of Gurmit Kaur v. Vijay Kumar, has found the respondent landlady is an NRI after looking into her passport and the sale deed dated 16.4.1971, and the same Rent Controller in other three petitions has taken a different view and has allowed the application for leave to defend and, therefore, the order passed is arbitrary and impermissible in law. The High Court, while allowing the petitions has observed, that, the Rent Controller would be justified in permitting the tenants leave to defend, if it is of the opinion that some triable issue would arise in view of the companytentions raised in the application filed under Section 18-A of the Act and at any rate, number on the ground that the respondent is number an NRI and that would lead to incongruous situation in view of the companyflicting orders passed by the same companyrt on the status of the respondent, and accordingly, has set aside the impugned orders and has remitted back to the Rent Controller, Nakodar, to reconsider the application filed by the tenants under Section 18-A of the Act in accordance with law. Aggrieved by the order of remand so passed, the appellants are before us in this appeal. The Learned Counsel for the appellants has argued that the order in Vijay Kumars case does number even record a finding to the effect that the respondent is an NRI hence the inferential finding in Vijay Kumars case companyld number be binding in the cases of the appellants. It is further submitted that the Rent Controller in Vijay Kumars case has accepted the claim of the respondent on the ground that Vijay Kumar in order to avoid the order of eviction had stated that his brother Vipin Kumar is the tenant of the shop premises, but in fact it was Vijay Kumar in whose name rent deed was executed, and the Rent Controller has just made a passing reference to the passport and sale deed of the respondent without deciding whether the respondent is an NRI. Therefore, in the instant Revision Petitions the High Court has erred in giving a finding that the learned Rent Controller has companysidered the respondent as an NRI. The genesis of our procedural laws is to be traced to principles of natural justice, the principal amongst them being that numberone shall suffer civil or evil or pecuniary companysequence at his back without giving him an adequate and effective opportunity to participate to disprove the case against him and prove his own case. See Charan Dass Duggal v. Brahma Nand, 1983 1 SCC 301 If some triable issues are raised then the companytroversy can be properly adjudicated after ascertainment of truth through cross-examination of witnesses who have filed their affidavits and other material documents.
civil appellate jurisdiction civil appeal number 558 of 1963. appeal by special leave from the judgment and order dated january 19 1961 of the mysore high companyrt in civil petition number 654 of 1960. g. patwardhan and k. r. chaudhury for the appellant. g. ratnaparkhi for respondent number 1. the judgment of the companyrt was delivered by bachawat j. the appellant is the landlord and respondent number 1 is the tenant of s. number. 180 and 182 of village dhanyal taluk bijapur. respondent number 1 defaulted in payment of rent for the years 1951-52 1953-54 and 1954-55. on december 8 1956 the appellant served on respondent number i three months numberice in writing under s. 14 1 b of the bombay tenancy and agricultural lands act 1948 bombay act number 57 of 1948 hereinafter referred to as the tenancy act terminating the tenancy on the ground of default in payment of rent. on june 24 1957 the appellant filed an application under s. 29 2 read with s. 14 1 of the tenancy act for possession of the land. the tahsildar bijapur allowed the application and directed possession of the land to be delivered to the appellant. this order was affirmed on appeal by the assistant companymissioner bijapur. on revision the mysore revenue appellate tribunal set aside the order of the first two tribunals and dismissed the application. a petition by the appellant under art. 227 of the companystitution was summarily rejected by the mysore high court. the appellant number appeals to this companyrt by special leave. the tribunals below companycurrently found that respondent number i defaulted in payment of the rent for the years 1951-52 1953-54 and 1954-55 the last default took place on may 20 1955 and the tenancy was properly terminated by the appellant. the first two tribunals also held that the application was filed within the time allowed by law. the revenue appellate tribunal however held that the application being filed more than two years after may 20 1955 is barred by limitation. the sole question before us is whether the application was filed within the two years period of limitation prescribed by s. 29 2 of the tenancy act. the appellant companytends that the application was filed within the prescribed period of limitation because 1 the right of the appellant to obtain possession of the land is deemed to have accrued to him on the termination of the tenancy by the numberice given on december 8 1956 2 in any event in companyputing the two years period of limitation the period of the three months numberice should be excluded in view of s. 15 2 read with s. 29 2 of the indian limitation act 1908. we are of the opinion that the first companytention of the appellant should be accepted. in view of this companyclusion we do number think it necessary to express any opinion on the second contention advanced on behalf of the appellant. sections 14 1 and 29 2 of the tenancy act as they stood- at. the relevant time are as follows 14. 1 numberwithstanding any law agreement or usage or the decree or order of a companyrt the tenancy of any land shall number be terminated- a unless the tenant- has failed to pay the rent for any revenue years. before the 31st day of march thereof has done any act which is destructive or permanently injurious to the land has sub-divided sub-let or assigned the land incompanytravention of section 27 has failed to cultivate it personally or has used such land for a purpose other than agriculture or allied pursuits and b unless the landlord has given three months numberice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated. 29 2 numberlandlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the mamlatdar. for obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land or dwelling house as the case may be is deemed to. have accrued to him. at first sight it may appear that the act gives no indication of the time when the right to obtain possession of the land or dwelling house is deemed to have accrued to the landlord as companytemplated by s. 29 2 . but on a close scrutiny of the act we are satisfied that this right must be deemed to have accrued to him on the date of the termination of the tenancy. it is to be numbericed that limitation for the application under s. 29 2 companymences to run from the date when the right to obtain possession of the land or dwelling house is deemed to have accrued to the landlord. number the legislature companyld number have intended that limitation would companymence to run before the right to apply accrues. it is reasonable to think that the right to apply also accrues to the landlord on the date when limitation for the application begins to run. but the right to apply under s. 29 2 read with s. 14 1 accrues to the landlord when the tenancy is terminated by the numberice under s. 14 1 b . in raja ram mahadev paranjype v. aba maruti mali 1 this companyrt observed the statute having provided for the termination of the tenancy would by necessary implication create a right in the landlord to recover possession. the statute recognises this right by providing by s. 29 2 for its enforcement by an application to the mamlatdar. it would follow that limitation for the application under s. 29 2 read with s. 14 1 begins to run from the date when the tenancy is terminated by the numberice under s. 14 1 b . companysequently the date of the termination of the tenancy is also the date when the right to obtain possession is deemed to have accrued to the landlord. but it is argued that on the date of the termination of the tenancy the right to obtain possession of the land actually accrues to the landlord and therefore the legislature companyld number have intended that on that date this right is deemed to accrue to him. this argument must be rejected. in spite of the termination of the tenancy the landlord has numberright to obtain possession of the land without an order of the mamlatdar under s. 29 2 . between the date of the termination of the tenancy and the date of the order for possession under s. 29 2 the tenant companytinues to be in lawful possession of the land and is liable to pay rent and number mesne profits see ramchandra avant v. janardan 2 . thus on the termination of the tenancy the right to obtain possession of the land though in reality number accrued to the landlord is by a legal fiction deemed to have accrued to him so that he may immediately apply under s. 29 2 for an order for possession. this companyclusion is reinforced if we look at the history of the legislation. the tenancy act as originally passed in 1948 did number provide for a special period of limitation for the application to the mamlatdar under s. 29. but it was thought that s. 72 of the tenancy act attracted the period of limitation prescribed 1 1961 1 supp. s.c.r.730747. 2 64 bom. l.r. 635 f.d. 637 641. by sub-ss. 3 and 4 of s. 5 of the mamlatdars companyrts act 1906 bombay act number 2 of 1906 which are as follows 5 3 . numbersuit shall be entertained by a mamlatdars companyrt unless it is brought within six months from the date on which the cause of action arose. 5 4 . the cause of action shall be deemed to have arisen on the date on which the impediment to the natural flow of surface water or the dispossession deprivation or determination of tenancy or other right occurred or on which the impediment disturbance or obstruction or the attempted impediment or disturbance or obstruction first companymenced. the bombay revenue tribunal therefore ruled that an application under s. 29 2 must be made within six months from the date when the cause of action accrues see a. s. desais bombay tenancy and agricultural lands act second edn. pp. 137-38 287-88 and in view of s. 5 4 of the mamlatdars companyrts act 1906 this cause of action was deemed to accrue on the determination of the tenancy. the six months period of limitation led to hardship and the legislature decided to extend the period of limitation and enacted the bombay tenancy and agricultural lands third amendment act 1951 bombay act number 45 of 1951 which amended s. 29 by providing for two years period of limitation and also s. 72 by inserting the words save as provided in section 29. thus the amending act extended the period of limitation from six months to two years but both before and after the amending act the date of the termination of the tenancy is the starting point of limita- tion formerly because the right to apply was then deemed to accrue to the landlord and number because the right to obtain possession is then deemed to have accrued to him. the tenancy act was amended from time to time. the requirement of a numberice for terminating the tenancy under s. 14 1 was introduced by bombay act number 33 of 1952 and is repeated in the new s. 14 substituted for the original section by bombay act number 13 of 1956. before the tenancy can be terminated under the new s. 14 1 two companyditions must be fulfilled. firstly the tenant must be guilty of one of the breaches mentioned in s. 14 1 a . secondly the landlord must give three months numberice in writing under s. 14 1 b and within that period the tenant must have failed to remedy the breach. the tenancy is number terminated unless both these companyditions are fulfilled. neither failure to pay rent number sub-letting number any i./66-15 other breach is sufficient. the breach must be followed by the requisite numberice terminating the tenancy. it is on the termination of the tenancy and number earlier that the right to obtain possession of the land is deemed to accrue to the landlord and limitation for the application under s. 29 2 read with s. 14 1 begins to run. in chimanbai rama v. ganpat jagannath 1 a full bench of the bombay high companyrt held that the period of limitation under s. 29 2 for applying to the mamlatdar for possession of the land on the ground that the tenant had sub-let it began from the date of sub-letting and that though the right to obtain possession actually accrues to the landlord on the date when he terminates the tenancy under s. 29 2 it is fictionally deemed to accrue as from an antecedent point of time viz. the date of the sub-letting. with respect we are unable to agree with this judgment. on the termination of the tenancy by the numberice under s. 14 1 b and before the order for possession under s. 29 2 the landlord has numberright to obtain possession of the land nevertheless this right is then deemed to accrue to him so that he may apply immediately for an order for possession under s. 29 2 . the sub-letting alone does number give him this right to apply under s. 29 2 . he may if he likes ignumbere the breach. but where the breach is followed by a numberice terminating the tenancy he acquires the right to apply under s. 29 2 .
1998 Supp 2 SCC 505 The Judgment of the Court was delivered by V.N. KHARE, J. Leave granted. This group of Civil Appeals is directed against the judgment of a Division Bench of Delhi High Court and the questions involved therein relate to the quantum of companypensation with regard to acquisition of appellants land situated in village Rangpuri Malikpur Kohi, Delhi. Since companymon questions of fact and law are involved in this group of appeals, we propose to decide them by a companymon judgment numbericing the fact of the case appearing on the record of Civil Appeal No. 7690 of 1994. A large tract of land in village Rangpuri hear Palam Airport was numberified for acquisition vide numberification dated 23.1.1965 issued under Section 4 of the Land Acquisition Act, 1984 hereinafter referred to as the Act for planned development of Delhi. Simultaneously, numberifications dated 23.1.1965 were also issued for acquisition of land in villages Masoodpur and Mahipalpur. Some plots of land of village Rangpuri were acquired vide Award No. 1958/ 67dated 16.3.1967. The Land Acquisition Collector while assessing the market value of the acquired land companyered by the aforesaid Award, divided the said land into three blocks and fixed Rs. 800, Rs. 600 and Rs. 400 per bigha for Block-I, Block-II and Block-III respectively. The remaining land of village Rangpuri number companyered by earlier award were acquired by Award No. 146/80-81 dated 30.3.1981. The Land Acquisition Collector while giving the said Award divided the land in to two blocks and fixed Rs. l800 and Rs. 1500 per bigha for Block-A and Block-B, respectively as market value as on 23.1.1965. Since the claimants were number satisfied with the companypensation offered by the Land Acquisition Collector, they preferred references to the District Judge, Delhi. Shri Jagdish Chandra, learned Additional District Judge, while dealing with one set of plots of land companyered under Award No. 1958, vide judgment dated 23.3.1971 assessed the market value of the land at Rs. 7000 per bigha for Block-A and Rs. 5000 per bigha for Block-B. Another set of reference cases also pertaining to remaining land companyered by Award 1958 were dealt with by Shri O.N. Vohra, learned Additional District Judge. After hearing the matter, the learned Additional District Judge vide judgment dated 5.11.1973 rejected the reference cases altogether and upheld the companypensation offered by the Land Acquisition Collector. The third set of reference cases pertaining to land companyered by Award No, 146 were decided by Shri T.S. Oberoi, learned Additional District Judge vide judgment dated 29.4.1986. The learned Additional District Judge, while deciding these cases relied upon the judgment of Shri Jagdish Chandra, Additional District Judge and fixed me market value of the land acquired at Rs. 7000 and 5000 per bigha, respectively. In the case of land falling in village Masoodpur, Shri S.R. Goel, learned Additional District Judge fixed the market value of the acquired land at Rs. 18,000 per bigha as on 23.1,1965. For the remaining land, falling in village Masoodpur, Shri Padam Singh, learned Additional District Judge fixed the market value of the land acquired at Rs. 14,340 per bigha with Rs. 10,000 as value of minerals and awarded Rs. 24,340 per bigha as companypensation, vide judgment dated 12.4.1990, The Union of India filed an Appeal in the High Court against the judgment of Shri Padam Singh, Additional District Judge which was registered as Regular First Appeal in short RFA No. 567/90, The High Court summarily dismissed the said appeal without assigning any reason and the matter ended there, as Union of India did number prefer any appeal challenging the said judgment passed by a Division Bench of the High Court. So far as the companypensation awarded to the claimants for acquisition of their lands in village Mahipalpur was companycerned, the High Court relied upon a decision of the High Court rendered in R.F.A. No. 567/90, as there was numbersale instance available for fixing the market value of land in village Mahipalpur. Consequently, me High Court by judgment and order dated July 17, 1991 allowed R.F.A. No. 122/78 and fixed the market value of the land in village Mahipalpur at Rs. 14,340 per bigha as on 23.1.1965. To companynect the chain of events, the claimants who are appellants before us, being number satisfied with the companypensation awarded by three different Additional District Judges filed three sets of appeals before the High Court. Some of the appellants before us filed Regular First Appeals against the order of Shri Jagdish Chandra, Additional District Judge in Land Acquisition Case No. 415/67 decided on 29.3.71 relating to Award No. 1958 whereby the learned Additional District Judge fixed the market value at Rs. 7000 per bigha for block 1 land and Rs. 5000 per bigha for block 2 land. The appellants claimants who were given companypensation at the rate of Rs. 5000 per bigha in their appeals claimed that they ought to have been given companypensation Rs. 7000 per bigha. The Union of India also filed appeals against the aforesaid judgment of Shri Jagdish Chandra, Additional District Judge, In the said appeals the claimants filed cross objections. While these appeals were pending, the High Court decided Regular First Appeal No, 122/78 Hoshiar Singh etc. v. Union of India awarding companypensation at the rate of Rs. 14340 per bigha in respect of land acquired in village Mahipalpur, In view of the said decision of the High Court, the claimants claimed companypensation Rs. 14340 per bigha for all categories of lands instead of Rs, 7000 per bigha, as awarded by the Reference Court. Regular First Appeals were also filed against the judgment of Shri O.N. Vohra. Additional District Judge in Land Acquisition Case No. 455/67 arising out of Award No. 1958 whereby Shri Vohra, learned Additional District Judge rejected the references holding that the claimants were number entitled to the enhancement of companypensation. Shri Vohra, learned Additional District Judge was of the view that the sale deed in relation to Khasra No. 1587/1 was sham and bogus and, as such, the same was number worthy of reliance. Regular First Appeals Nos. 333/87 and 431/86 were also filed against the judgment of Shri T.S. Oberoi, Additional District Judge rendered in Land Acquisition Case No. 29/83 decided on 24.11.86. All these appeals and cross objections were companysolidated and heard together by the High Court. The High Court by the impugned judgment partly allowed the appeals of Union of India and appellants holding that the claimants appellants were entitled to companypensation Rs, 3000 per bigha in respect of the entire lands as the High Court did number approve of the division of land in three blocks companysidering its potential value. The claimants were also given solatium in accordance with the law prevalent at the relevant time. Aggrieved, the appellants have companye to this Court by filing Special Leave Petitions. Learned companynsel for the appellants argued that for the acquired land in the adjoining villages, viz., Masoodpur and Mahipalpur, the claimants were awarded companypensation Rs, 14,340 per bigha and as such the appellants in the present cases were also entitled to the same amount of companypensation In this companynection learned companynsel relied upon the judgment of Delhi High Court in RFA No. 122/78 Hoshiar Singh etc. v. Union of India decided on 17.7.91 and judgment in RFA No. 567/90 Union of India v. Inderpal Malhotra, decided on 25.10.90 awarding companypensation at the rate of Rs. 14340 per bigha for acquisition of land in villages Mahipalpur and Masoodpur, respectively. On the strength of these judgments, learned companynsel urged that there should be an uniformity in the matter of grant of companypensation and the High Court companymitted a grave error in depriving the appellants of the companypensation which they were entitled under the law. Learned companynsel also argued that since numberappeal or cross objection was filed by Union of India against the judgment in Land Acquisition Case No. 316/82 decided by Shri T.S. Oberoi, Additional District Judge, there exists two sets of rates of companypensation, and under such circumstances in order to bring uniformity in the rate of companypensation, the appellants may be awarded the same rate of companypensation which the claimants in Land Acquisition Case No. 3116/82 have been awarded. So far as the first argument that the appellants ought to have been given the same rate of companypensation which was given to the claimants of the adjoining village is companycerned, the amount of companypensation for the land acquired depends on the market value of land on the date of immediately before the numberification under Section 4 of the Act or when same land is acquired and offer of companypensation is made through an Award, whether such an offer of companypensation represent the market value of the land on the date of numberification under Section 4 of the Act, has to be determine on the basis of evidence produced before the Court. The claimants have to prove and demonstrated that the companypensation offered by the Collector is number adequate and die same does number reflect the true market value of the land on the date of numberification under Section 4 of the Act This companyld only be done by the claimants by adducing evidence to the effect that on the relevant date, the market value of the land in question was such at which the vendor and the vendee buyer and seller were willing to sell or purchase the land. The companysideration in terms of price received for land under bona fide transactions on the date or preceding the date of numberification issued under Section 4 of the Act generally shows the market Value of the acquired land and the market, value of the acquired land to be assessed in terms of those transactions. Sale instances showing the price fetched for similar land with similar advantages under bonafide transaction of sale at or near about the issue of numberification under Section 4 of the Act is well recognized to be the appropriate evidence for determining the market value of the acquired land. The companytention of appellants companynsel that appellants deserved to be awarded the same rate of companypensation as it was awarded to the claimants of village Masoodpur and Mahipalpur, in the present facts and circumstances of the case, is number tenable. If we go by the companypensation awarded to claimants of adjoining village it would number lead to the companyrect assessment of market value of the land acquired in the village Rangpuri. For example village A adjoins village B, village B adjoins village C, village G adjoins village D, so on and so forth and in that process the entire Delhi would be companyered. Generally mere would be different situation and potentiality of the land situated in two different villages unless it is proved that the situation and potentiality of the land in two different villages are the same. The High Court in the present case has found that the situation and potentiality of land in village Malikpur Khoi are different than that of village Masoodpur, This finding of the High Court is based on companyrect appreciation of evidence on record and does number call for interference. Another reason why the High Court declined to rely upon the judgments referred to above was that the sale instances relating to village Malikpur Khoi were available for determining the market value of the land acquired in village Malikpur Khoi and as such there was numberneed to rely upon the judgments which related to acquired land of different villages. Yet another reason why the two judgments referred to by learned companynsel for appellant cannot be relied upon for assessing the market value of acquired land in village Malikpur Khoi was that RFA No. 567/90 filed by the Union of India relating to the grant of companypensation in respect of land in village Masoodpur was dismissed summarily, as the only challenge in the appeal was in respect of grant of interest to the claimants which matter was already settled by the Supreme Court, in fact, the High Court had adversely companymented upon the working of the Land Acquisition Department of Delhi Administration in number challenging the market value of the land acquired in village Masoodpur as assessed by the. Additional District Judge, in Regular First Appeals although the companyrt fee to that effect was paid. In this companynection, it is relevant to reproduce the finding of the High Court, which runs as follows- Before leaving the judgment, We are companystrained to make a few Observations regarding the working of the land Acquisition Department in Delhi Administration and companytest of these appeals by the companynsel for Union of India. Although an appeal filed by the Union of India against the judgment of the ADJ in LAC 186/91 is pending in this companyrt, this fact was number brought to our numberice by the companynsel for Union of India. This decision of the ADJ in LAC 186/81 has been substantially relied upon by another ADJ in LAC 15/81. When the appeal against the said decision of the ADJ in LAC 15/81 came before us RFA 567/90 the only question pressed by the companynsel for Union of India was in regard to the payment of interest after the amendment in the Land Acquisition Act in 1984, But when we found that the dismissal of the said appeal by the Division Bench was relied upon in RFA 122/78 Hoshiar Singh V. Union of India, we sent for the file. What is discovered on the file is shocking. The Union of India had purchased stamp worth Rs. 1,19,300, Obviously, the intention was to file an appeal against the quantum of companypensation awarded by the ADJ. However, the grounds of appeal mostly relate to the payment of interest in terms of the Amending Act of 1984. The appeal memo was drafted by Mr. Gulab Chandra, Advocate, who also appeared before us in RFA 567/90. Since the questions regarding payment of interest after the Amending Act of 1984 are number fully settled by the decisions of me Supreme Court had since that was the only question argued before us by the companynsel for the Union of India, the appeal was dismissed by us. We had number numbericed at that stage that a stamp of Rs. 1,19,300 was affixed by the Union of India. This only discovered number. The purchase of stamp worth Rs. 1,19,300 would show that the claim would be over a crore of rupees. The claimants have been benefited because Union of India did number argue the matter on companypensation. Apart from the lack of interest and inefficiency in the Land Acquisition matters on behalf of the Land Acquisition Department, these facts raise grave suspicion about the credibility of the working of the said Department, We, therefore, direct that a companyy of this judgment be sent to the Lt. Governor for appropriate action. The judgment of the High Court in RFA No, 567/90 was relied upon in RFA No. 122/78 Hoshiar Singh etc. v. Union of India as there was numbersale instance in respect of the land in village Mahipalpur was available for assessing the market value of acquired land in the village Mahipalpur. It may be seen that in both the cases the High Court had numberoccasion to examine the market value of acquired land in village Masoodpur and Mahipalpur and under such circumstances it is number safe to rely upon two judgments of the High Court for arriving at the market value of the land in village Rangpuri. The High Court has companysidered the following sale instances in detail which were from the same village viz, Rangpuri A to A and came to the companyclusion that sale transaction with regard to Khashra No. 1587/1 is number genuine sale transaction and as such it cannot be relied upon for assessing the market value of the land acquired. The High Court also found that the sale instances of the year 1964 at serial No. 4 and 6 which were nearer to the point of time of numberification under Section 4 of the Act, are best pieces of evidence for assessing the market value of the land acquired. S1 Ext. Des- Date of Not- Field No. Rate No. No. cription of fication Area and per document situation bigha sale regn. Rs. A-l Deed of sale 14.03.61 14 2 bighas 25,000 Malikpur Khoi A-2 -do- 07.07.62 72 min 6bis 4,000 -do- A-5 -do- 28.04.64 1587/1 1 bigha 5000 -do- A-2 -do- 26.10.62 1677 4 bighas 344 R-l Copy of 09.04.63 Mutation R-2 Deed of sale 19.08.64 769,770 etc. 91 bighas 1 bis. -do- 1637, 1650,1651,1652,1653/1 1653/2 24 bighas 500 -do- After having companysidered the sale instances the High Court assessed the market value of the land acquired Rs. 3000 per bigha.
Dr. MUKUNDAKAM SHARMA, J. This appeal is directed against the judgment and order dated 05.10.2001 passed by the High Court of Madras whereby the High Court has allowed the appeal filed by the respondent herein. The High Court acquitted the respondent under Sections 302, 364, 201 and 342 of the Indian Penal Code, 1860 for short IPC by reversing the Judgment and order dated 11.03.1988 rendered by the Court of Principal Sessions Judge, Cuddalore in Sessions Case No. 63 of 1997. The facts of this case are very shocking and very distressing. Murder is companymitted of a young boy, the only son of his parents, who at the relevant time was studying for a medical degree. The manner in which he was killed and his dead body was disposed of after cutting it into different pieces was very gruesome and ghastly. The person in the dock and who was accused of the crime was another senior student in the same campus. Brief relevant facts leading to the registration of the first information report and giving rise to the present appeal are being set out hereunder. In the academic year of 1995-96 the respondent-accused was studying in the senior first year companyrse of MBBS and the deceased-Navarasu, son of Dr. P.K. Ponnusamy PW-1, a retired Vice-Chancellor of Madras University, was studying in the junior first year companyrse of MBBS in Raja Muthiah Medical College, Annamalai University, Annamalai Nagar. The respondent was staying in room number 319 of KRM hostel and the deceased was staying in room number 95 in E.1 Malligai Hostel belonging to the same medical companylege campus. PW-1 returned from his foreign trip on 07.11.1996 and was waiting for the arrival of his son-Navarasu from companylege to celebrate Diwali which in that relevant year fell on 10.11.96. When Navarasu did number return home till 09.11.1996, PW-1 started enquiring from the friends of his son, available at Madras but numberinformation of his whereabouts companyld be gathered by the father. PW-1 then on 09.11.1996 rang up the university authorities to find out and ascertain the whereabouts of his son. When he was informed that the companylege authority found his hostel room locked and when it was broken upon, it was found that his belongings along with a small box were lying in the room but he was number available in the room. The companylege authorities and the father were of the opinion that Navarasu had number left for Diwali to Madras. PW-1 thereafter rushed to the University on 10.11.96 and made a companyplaint of missing of his son at about 11.30 p.m. on 10.11.96 which was registered as Crime No. 509 of 1996 Exhibit-P1. While this process was going on and without the knowledge of Annamalai Nagar Police, a torso was recovered at about 8.30 a.m. on 07.11.1996 by G. Boopahty, Inspector of Police, E.5 Pattinapakkam PW-55, from the PTC Bus Depot at Mandaiveli, Madras based on the information given by Prakash PW-53, companyductor of the bus route NO. 21G. The said recovered torso was sent for post-mortem after inquest. The Annamalai Nagar Police after registering the missing report started investigation and during the companyrse of such investigation gathered materials and also received information from various persons including students of the companylege pointing the guilt towards the accused, who was also found absconding from the companylege premises from 12-14.11.1996. On 14.11.1996 the accused surrendered himself before the Judicial Magistrate, Mannargudi. The message of his surrender was companyveyed to the Annamalai Nagar PS, which got the police custody for five days of the accused from 18.11.1996. On 19.11.1996 at about 1.30 a.m. the accused gave a companyfessional statement stating that he has put the severed head of the deceased in the boat-canal within the University campus. Pursuant to the said companyfession, the head was also recovered. Annamalai Nagar PS on 20.11.1996 asked E5. Pattinapakkam PS for sending the records companynected with the torso recovered at Madras on the suspicion that it may belong to the severed head of the deceased-Navarasu, which was recovered at the instance of the accused. Dr. K. Ravindran PW-66 companyducted autopsy postmortem of the head at 10.00 am on 21.11.1996. On 22.11.1996 a message was received from Villupuram Control Room which was forwarded to Annamalai Nagar PS which mentioned that three human bones femur, tibia and fibula have been recovered at 1.30 a.m. on 21.11.1996 from the seashore of Konimedu of Merkanam based on the information given by the companycerned Village Administrative Officer-Nagarajan PW-43. Post mortem of the limbs were companyducted by Dr. Srinivasan PW-45 and later limbs were sent to PW-66. PW-66 after examining the severed head, the torso and three human bones above mentioned, found that there are scientific materials to hold that they belong to a single individual and also the fact that they belong to deceased-Navasaru. The father of the deceased PW-1 and Thandeeswaran PW-60, nephew of PW-1, also identified and companyfirmed that the head and torso are of the deceased. For companyfirming the said fact, the sample blood of PW-1 and his wife Baby Ponnusamy mother of Navasaru was examined by Dr. G.V. Rao PW-77 at Hyderabad by DNA test. PW-77 companypared the tissues taken from the severed head, torso and limbs and on scientific analysis he found that the same gene found in the blood of PW-1 and Baby Ponnusamy were found in the recovered parts of the body and that therefore they should belong to the only missing son of PW-1. The prosecutions version of facts leading to the present case are that on 06.11.1996 at about 2.00 p.m. the accused-John David first year senior medical student of Muthiah Medical College, Annamalai Nagar took away Navarasu-deceased first year junior medical student of Muthiah Medical College, Annamalai Nagar and subjected him to severe ragging in Room No. 319 of KRM Hostel of the companylege and when the latter did number subjugate himself to the accused, accused caused head injury to the deceased and when Navarasu-deceased was lying on the ground unconscious, the accused severed his head and limbs with the help of stainless steel knives and removed his gold ring, watch and gold chain and caused his death. After doing such gruesome act and with the intention of hiding the evidence and also to show his alibi he put the head and the gold articles of Navarasu-deceased in a zip bag and threw it into canal water near the hostel and burnt the bloodstained clothes of the deceased in the open terrace of the hostel building and took the torso in a suitcase along with the limbs in a train to Madras and threw the limbs in a river when the train crossed Cuddalore and put the torso in a bus at Tambaram. On companypletion of investigation, the police submitted a charge sheet against the respondent. On the basis of the aforesaid charge sheet, charges were framed against the accusedrespondent. The prosecution in order to establish the guilt of the accused examined several witnesses and exhibited a number of documents including scientific reports. Thereafter, the accused was examined under Section 313 Cr.P.C. for the purpose of enabling him to explain the circumstances existing against him. After hearing arguments advanced by the parties, the Principal Sessions Judge, Cuddalore by its judgment dated 11.03.1998 companyvicted the accused. Principal Sessions Judge, Cuddalore found that there are enough circumstantial evidence and motive on the part of the accused for companymitting such a crime and held the accused respondent guilty under Sections 302, 201, 364 and 342 IPC and companyvicted and sentenced him to undergo imprisonment for life under sections 302 and 364 IPC, rigorous imprisonment for one year under Section 342 IPC, and rigorous imprisonment for seven years and to pay a fine of rupees one lakh and in default to undergo rigorous imprisonment for twenty one months under Section 201 IPC. It was also ordered that the sentences would run companysecutively. Aggrieved by the aforesaid judgment and order of companyviction passed by the trial Court, the respondent herein preferred an appeal before the High Court. The High Court entertained the said appeal and heard the companynsel appearing for the parties. On companyclusion of the arguments, the High Court held that the prosecution has failed to prove the guilt of the accused and accordingly the High Court acquitted the respondent of all the charges vide its judgment and order dated 05.10.2001 by reversing and setting aside the order of companyviction passed against the respondent under Sections 302, 201, 364 and 342 IPC. We may number at this stage refer to the arguments of the companynsel of the parties in order to understand the scope and ambit of the appeal and also to appreciate the companytentions so as to enable us to arrive at a well-considered findings and companyclusions. Mr. S. Thananjayan, learned companynsel appearing on behalf of the State emphatically argued before us that the decision of the High Court of acquitting the accused person is totally erroneous and suffers from serious infirmities. He also submitted that the prosecution has proved the case to the hilt and that a companypete and well-connected chain of circumstantial evidences have been established to prove the guilt of the accused. He also submitted that the prosecution has established the case against the accused beyond reasonable doubt. It was also submitted that the motive of the accused to cause bodily injury to the deceased has also been proved and that the evidence on record clearly establish that on 06.11.1996 the deceased was in the companypany of the accused and that thereafter, deceased companyld number be found and that the companyfessional statement of the accused leading to the discovery of head of the deceased in the canal is a clinching circumstance to companynect the accused with the offence. He also companytended and relied upon the fact that the accused absconded from the hostel for several days and thereafter surrendered before the Court which would serve as an additional link in the chain of circumstances to prove the charges levelled against him. He also submitted that the High Court was number justified in setting aside the order of companyviction, for what the High Court had found proved was only a plausible or possible view and version, which did number find favour with the trial Court. He also submitted that the High Court was number justified in disbelieving the recording of companyfession merely because of the omission to mention the same in the case diary. It was also submitted that the High Court was number justified in disbelieving the recovery merely because there was companytradiction with regard to timing of recovery. He further submitted that the High Court erroneously disbelieved the case of the prosecution that the torso companyld be carried in MO-13 - Suit Case which is 21 inches as according to Exhibit P52 mahazar - the length of MO-13 is 21 inches and diameter is 24 inches and therefore, the torso companyld number have been parceled in the suit case MO-13. He also took us through the evidence on record in support of his companytention that the High Court companymitted an error in acquitting the respondent solely on the ground that it is hazardous to companyvict the accused on the basis of the evidence placed by the prosecution. He submitted that in the present case all the witnesses produced are of respectable status and are independent witnesses and they do number have any axe to grind against the accused and, therefore, the High Court companymitted an error in disbelieving the evidence on record. On the other hand, Mr. Sushil Kumar, learned senior companynsel appearing on behalf of the respondent-accused very painstakingly drew our attention to various aspects of the case, which according to him demolish the very substratum of the prosecution case. He also heavily relied upon the fact, by making submission, that there are numbereye-witnesses and numberdirect evidence regarding companymission of the crime by the respondent. He submitted that there are numbermaterials to show that the respondent took the deceased to room No. 319 room of the accused and killed him there. He further submitted that as numberblood was recovered from the room No. 319 and that the two roommates of the respondent, viz., Raja Chidambaram PW-37 Shagir Thabris PW-38 have number stated that they smelled any blood or saw any blood stains in the room, it definitely belies prosecution case that murder was companymitted in the said room of the hostel. Further submission was that PWs 37 38 admitted that the three knives i.e., MOSs 9 to 11 were used for cutting fruits and that PW 37 further admitted that during the time of interrogation police neither showed the articles seized from the room of accused number asked him to identify the said articles. The companynsel for the respondent further submitted that there is numberevidence to prove that the accused proceeded to Madras on 06.11.1996 at 9.00 p.m. from Chidambaram railway station, albeit he submitted that accused took train at Chidambaram on 06.11.1996 at 9.00 p.m. bound for Tiruchirapalli to go to his native place, Karur and returned from Karur on 8th morning. Counsel stated that accused took his briefcase MO-13 along with him and that MO-14 belongs to Raja Chidambaram PW-37 and after meeting his parents on 7.11.96, the accused returned to Chidambaram hostel on the morning of 8.11.96 and he was in the hostel from 9-11.11.96. On the night of 10.11.96 his mother and his companysin brother had arrived at Chidambaram and stayed in Saradha Ram Hotel and they left on 11.11.96 Noon. Counsel for the respondent further submitted that the number-examination of the Vice- Chancellor and the Dean of the university though they have been cited in the charge sheet as witnesses is fatal to the prosecution case. Next submission was that the chain of events to prove the guilt of the accused has many loopholes in it. Learned senior companynsel for the respondent also submitted that the High Court has rightly acquitted the accused as circumstances alleged by the prosecution have number been proved. It was also his submission that this being an appeal against acquittal, it is to be ascertained very carefully whether the view taken by the High Court is a plausible or possible view and that if the order of acquittal is one of the possible view, the same deserves deference rather than interference by the appellate companyrt. He also submitted that the trial companyrt was wrong in holding the respondent guilty for evidence adduced by the prosecution to prove that the deceased was last seen with the accused replete with inherent improbabilities and inconsistencies. LEGAL POSITION- APPEAL AGAINST ACQUITTAL Before we enter into the merit of the case, we are required to deal with the companytention of the companynsel appearing on behalf of the respondent regarding the scope and ambit of an APPEAL AGAINST ACQUITTAL. Various decisions of this Court have dealt with the issue very extensively. Therefore, it would be suffice, if we extract few decisions of this Court laying down the law in this regard. In the case of State of U.P. v. Ram Sajivan Ors. reported at 2010 1 SCC 529, one of us Bhandari, J. detailed the law in this regard as follows - 46. This Court would ordinarily be slow in interfering in order of acquittal. The scope of the powers of the appellate companyrt in an appeal is well settled. The powers of the appellate companyrt in an appeal against acquittal are numberless than in an appeal against companyviction. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In Chandrappa v. State of Karnataka this Court held SCC p. 432, para 42 An appellate companyrt has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The Code of Criminal Procedure, 1973 puts numberlimitation, restriction or companydition on exercise of such power and an appellate companyrt on the evidence before it may reach its own companyclusion, both on questions of fact and of law. Various expressions, such as, substantial and companypelling reasons, good and sufficient grounds, very strong circumstances, distorted companyclusions, glaring mistakes, etc. are number intended to curtail extensive powers of an appellate companyrt in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate companyrt to interfere with acquittal than to curtail the power of the companyrt to review the evidence and to companye to its own companyclusion. An appellate companyrt, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a companypetent companyrt of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial companyrt. If two reasonable companyclusions are possible on the basis of the evidence on record, the appellate companyrt should number disturb the finding of acquittal recorded by the trial companyrt. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In Ghurey Lal v. State of U.P., one of us Bhandari, J. summarised the legal position as follows in paras 69 and 70 SCC p. 477 The following principles emerge from the cases above The appellate companyrt may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate companyrt can reappreciate the entire evidence on record. It can review the trial companyrts companyclusion with respect to both facts and law. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial companyrt. The trial companyrts acquittal bolsters the presumption that he is innocent. Due or proper weight and companysideration must be given to the trial companyrts decision. This is especially true when a witness credibility is at issue. It is number enough for the High Court to take a different view of the evidence. There must also be substantial and companypelling reasons for holding that the trial companyrt was wrong. In a recently delivered judgment of this Court in State of U.P. v. Banne, one of us Bhandari, J. summarised the entire legal position and observed that this Court would be justified in interfering in the judgment of the High Court in the following circumstances which are illustrative and number exhaustive SCC p. 286, para 28 The High Courts decision is based on totally erroneous view of law by ignoring the settled legal position The High Courts companyclusions are companytrary to evidence and documents on record The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice The High Courts judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case This Court must always give proper weight and companysideration to the findings of the High Court This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. This Court would be justified in interfering with the judgment of acquittal of the High Court only when there are very substantial and companypelling reasons to discard the High Court decision. When we apply the test laid down by this Court repeatedly in a large number of cases, the irresistible companyclusion is that the High Court in the impugned judgment has number companyrectly followed the legal position. In another decision of this Court in the case of Sannaia Subba Rao Ors. Vs. State of A.P. reported at 2008 17 SCC 225, one of us, has referred to and quoted with approval the general principles while dealing with an appeal against acquittal, wherein, it was clearly mentioned that the appellate companyrt has full power to review, relook and re-appreciate the entire evidence based on which the order of acquittal is founded further it was also accepted that the Code of Criminal Procedure puts numberlimitation or restriction on the appellate companyrt to reach its own companyclusion based on the evidence before it. In the case of Sidhartha Vashisht alias Manu Sharma v. State NCT of Delhi reported at 2010 6 SCC 1 this companyrt held as follows - The following principles have to be kept in mind by the appellate companyrt while dealing with appeals, particularly against an order of acquittal There is numberlimitation on the part of the appellate companyrt to review the evidence upon which the order of acquittal is founded. The appellate companyrt in an appeal against acquittal can review the entire evidence and companye to its own companyclusions. The appellate companyrt can also review the trial companyrts companyclusion with respect to both facts and law. While dealing with the appeal preferred by the State, it is the duty of the appellate companyrt to marshal the entire evidence on record and by giving companyent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are companypelling and substantial reasons for doing so. If the order is clearly unreasonable, it is a companypelling reason for interference. While sitting in judgment over an acquittal the appellate companyrt is first required to seek an answer to the question whether findings of the trial companyrt are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate companyrt answers the above question in the negative the order of acquittal is number to be disturbed. Conversely, if the appellate companyrt holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own companyclusion. When the trial companyrt has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration report of ballistic experts, etc. the appellate companyrt is companypetent to reverse the decision of the trial companyrt depending on the materials placed. Therefore, one of the settled position of law as to how the Court should deal with an appeal against acquittal is that, while dealing with such an appeal, the appellate Court has numberrestriction to review and relook the entire evidence on which the order of acquittal is founded. On such review, the appellate Court would companysider the manner in which the evidence was dealt with by the lower Court. At the same time, if the lower Courts decision is based on erroneous views and against the settled position of law, then such an order of acquittal should be set aside. Another settled position is that, if the trial Court has ignored material and relevant facts or misread such evidence or has ignored scientific documents, then in such a scenario the appellate companyrt is companypetent to reverse the decision of the trial companyrt. Therefore keeping in mind the aforesaid broad principles of the settled position of law, we would proceed to analyse the evidence that is adduced and companye to the companyclusion whether the decision of the High Court should be upheld or reversed. CASE ON CIRCUMSTANTIAL EVIDENCE The principle for basing a companyviction on the edifice of circumstantial evidence has also been indicated in a number of decisions of this Court and the law is well-settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible companyclusion that companyld be drawn is the guilt of the accused and that numberother hypothesis against the guilt is possible. This Court has clearly sounded a numbere of caution that in a case depending largely upon circumstantial evidence, there is always a danger that companyjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such companypleted chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. It has been indicated by this Court that there is a long mental distance between may be true and must be true and the same divides companyjectures from sure companyclusions. This Court in the case of State of U.P. v. Ram Balak Anr., reported at 2008 15 SCC 551 had dealt with the whole law relating to circumstantial evidence in the following terms - It has been companysistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely companynected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the companyclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. wherein it has been observed thus SCC pp. 206-07, para 21 In a case based on circumstantial evidence, the settled law is that the circumstances from which the companyclusion of guilt is drawn should be fully proved and such circumstances must be companyclusive in nature. Moreover, all the circumstances should be companyplete and there should be numbergap left in the chain of evidence. Further, the proved circumstances must be companysistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In Padala Veera Reddy v. State of A.P. it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests SCC pp. 710-11, para 10 1 the circumstances from which an inference of guilt is sought to be drawn, must be companyently and firmly established 2 those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused 3 the circumstances, taken cumulatively, should form a chain so companyplete that there is numberescape from the companyclusion that within all human probability the crime was companymitted by the accused and numbere else and 4 the circumstantial evidence in order to sustain companyviction must be companyplete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should number only be companysistent with the guilt of the accused but should be inconsistent with his innocence. 10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the companyclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be companysistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a companyclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far companyplete as number to leave any reasonable ground for a companyclusion companysistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is companyplete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The companyditions precedent in the words of this Court, before companyviction companyld be based on circumstantial evidence, must be fully established. They are SCC p. 185, para 153 1 the circumstances from which the companyclusion of guilt is to be drawn should be fully established. The circumstances companycerned must or should and number may be established 2 the facts so established should be companysistent only with the hypothesis of the guilt of the accused, that is to say, they should number be explainable on any other hypothesis except that the accused is guilty 3 the circumstances should be of a companyclusive nature and tendency 4 they should exclude every possible hypothesis except the one to be proved and 5 there must be a chain of evidence so companyplete as number to leave any reasonable ground for the companyclusion companysistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These aspects were highlighted in State of Rajasthan Raja Ram, at SCC pp. 187-90, paras 9-16 and State of Haryana v. Jagbir Singh. In the light of the above principle we proceed to ascertain whether the prosecution has been able to establish a chain of circumstances so as number to leave any reasonable ground for the companyclusion that the allegations brought against the respondent are sufficiently proved and established. MOTIVE In the present case, in the chain of events, the first point which arises for our companysideration is the MOTIVE behind the alleged crime done by the accused-John David. The prosecution has alleged that accused was in the habit of ragging the junior students and accustomed in getting his home work done by the junior students and that is why when the deceased did number subjugate himself to the accused, the accused gathered ill-will against the deceased and therefore, that was the motive for which the accused killed him. For the purpose of proving the aforesaid motive of the accused the prosecution has placed reliance upon the evidence of Dr. R. Sampath PW-3, Karthikeyan PW-4, Praveen Kumar PW-5 and Subhash PW-6, V. Balaji PW-19 and Ramaswamy PW-20. Dr. R. Sampath PW-3, who is the Head of the Department of Radiology, Annamalai University as also parttime Warden of Malligai Hostel of the University, who in his deposition has stated that on 19.11.1996 at about 8.30 p.m. he had witnessed the junior students standing in front of the Hostel in a row in front of the seniors, including the accused- John David. Thereafter PW-3 made enquiries on the incident and submitted a report about the incident of ragging to the higher officials which is marked as Exhibit P-3. Karthikeyan PW-4, 1st year junior student of the companylege, stated that on 06.11.1996 accused-John David along with one Kumaran came to Hostel and forced him to purchase the tickets of Engineering Cultural Programme, which they purchased with hesitation and this fact was also witnessed by the Warden and Deputy Warden. Along with PW-4, Praveen Kumar PW-5 and Subhash PW-6, both 1st year students of the companylege, stated in their evidence that they have written record work for the accused- John David under companypulsion and with the fear of being ragged. V. Balaji PW-19, 1st year student of companylege, stated in his evidence that the accused-John David along with Kumaran forced them to purchase the tickets for the Cultural Programme and also made them to stand and that Warden, Dean and Deputy Warden got the students released from such ragging. Ramaswamy PW-20, 1st year student of the companylege, stated in his evidence that accused-John David used to companye to hostel for ragging and to get the record work companypleted after ragging. PW-19 further stated that on 06.11.1996, after finishing his viva-voce test at about 11.30 a.m. when he returned, the accused came to his room between 11.30 a.m. to 12 Noon and asked him about the deceased-Navarasu. PW-20 also stated that when he was returning after finishing his viva-voce test, the accused on 06.11.1996 at about 12 Noon asked him about the companypletion of the test of Navarasu. From the evidence of the above witnesses and other documents on records it becomes quite evident that the record books of the accused were written by other juniors and that accused was in the habit of ragging junior students. The evidence of PWs 19 20 also go to prove that the accused was looking for Navarasu frantically in the morning, which was definitely number for the benefit of the deceased looking at the background behaviour of the accused towards deceased, for there is enough evidence on record to support the case of the prosecution that the accused was having malice and ill-will against with the deceased as he had refused to succumb to the ragging demands of the accused. LAST SEEN ALIVE In the chain of events, the second point which arises for our companysideration is the LAST SEEN evidence of deceased with the accused. For proving the said fact that the deceased was last seen alive in the companypany of the deceased, the prosecution has placed reliance upon the evidence of V. Balaji PW-19 and Ramaswamy PW-20, G.M. Nandhakumar PW-21, R. Mohamed Shakir PW-22, R. Saravanan PW-23 and T. Arun Kumar PW-25. PWs 21 and 22, 1st year students of the companylege, stated in their evidence that when they were returning from the companylege at about 12.45 p.m. on 06.11.1996 they saw the deceased and accused together and accused stopped Navarasu and asked them to leave from there and thereafter they had number seen Navarasu alive. PW-23, Laboratory Attendant of the companylege, stated in his evidence that he saw both accused and deceased in companyversation with each other on 06.11.1996 at about 12.45 or 1.00 p.m. in front of Deans office. PW-25, 2nd year companylege student, stated that he also saw both accused and deceased together at about 2.00 p.m. on 06.11.1996. From the evidence of Dr. Sethupathy PW-7, Mrs. Alphonsa PW-8, Prof. Gunasekaran PW-10 and V. Balaji PW-19 it also companyes out that till the afternoon of 06.11.1996 deceased attended the lectures but after meeting with the accused he did number appear in the lecture test on the same day and was also absent thereafter from lectures tests. Ramaswamy PW-20 also categorically stated that after the viva-voce test held on 06.11.1996, he did number see the deceased alive. From the evidence of all the abovesaid witnesses it is also clear that the deceased was last seen alive in the companypany of the accused on 06.11.1996 between 12.45 to 2.00 p.m. and thereafter numberone had seen the deceased alive and this fact also supports the case of the prosecution. Moreover accused admitted in his statement filed during question U s 313, Cr.P.C. that he was sitting in the companyridor of Deans office in the afternoon of 06.11.1996, which further companyroborates the case of prosecution. SUSPICIOUS CONDUCT OF THE ACCUSED The companyduct of the accused is the next chain of circumstance which is heavily relied upon by the prosecution for proving the guilt of the accused and for this it placed reliance on the evidence of Subba Vankatesan PW-28, Vijayarangam PW-29, Murali PW-35, Senthilkumar PW-40, Joe Bulgani PW-41 and Rajmohan PW-42. PW-28, auto driver, stated in his evidence that on 06.11.1996 at about 8.00 p.m. accused took his auto to the hostel from where the accused went to Chidambaram railway station along with two suitcases. PW-29, Watchman of KRM Hostel, stated in his evidence that on 06.11.1996 at 8.15 p.m. accused came to hostel in an auto and brought two bags inside the hostel and left in auto immediately thereafter and that the accused returned with the two suitcases at 4.00 a.m. on 8.11.1996. PW- 40, student of the companylege stated that on 08.11.1996 at 4.30 a.m. he saw the accused sleeping in the varanda of Room No. 319 with two suitcases nearby because the accused did number have the room keys, as the accuseds roommate took away the keys and, when PW-40 offered the accused to companye and stay in his room, at about 5.30 a.m. the accused came to his room and kept a suitcase, i.e., MO-14 and went to sleep in the room of PW-41 along with MO-13. When PWs 40 41 came from mess at about 8.30 a.m. PW-41 companyplaint about foul smell companying from his room Room No. 325. Thereafter, accused took the MO-13 from the room at about 12.30 p.m. This statement of PW-40 was also supported by the statement of PW-41. PW-42, student of the companylege, stated that on 8.11.1996 at 12.30 p.m. accused was sleeping in Room No. 325 and that on 9.11.1996 accused along with one other student went to B Mess for lunch but accused did number take the lunch on the ground that his stomach is number alright and on return he saw accused keeping his hand on the wall with sad look on his face. He further stated that when he entered in the room of the accused Room No. 319 he smelt foul smell and on asking about the same from the accused, the accused replied that it is of the Biriyani which was given to him by his mother. Later at 4.30 p.m. the accused asked PW-42 to drop him at the Chidambaram Railway Station as he wanted to go to his native place and thereafter he dropped the accused along with a briefcase at the Railway Station on the bike of one Rangarajan. PW-42 also purchased a train ticket for Tanjavur for the accused. PW-42 also stated that on 10.11.1996 he saw accused standing before Room No. 319 and on asking the accused told that he went upto Trichy and returned back. PW-35, Receptionist of Hotel Saradharam, Chidambaram stated that on 10.11.1996 at about 8.10 p.m. accused stayed in the hotel along with one Dr. Esthar and they vacated the room at 3.15 a.m. on 12.11.1996. The accused on 14.11.1996 surrendered in the Court of Judicial Magistrate, Mannarkudi and was remanded to judicial custody till 18.11.1996. On 18.11.1996 the Court ordered for five days police custody of the accused on the companydition that the accused should be produced before a Doctor in the Government Hospital, Chidambaram at 10.00 a.m. daily for medical check up. The above said unusual and eccentric companyduct of the accused which is unequivocally told by the witnesses makes the companyduct of the accused highly suspicious and leads to companyroborate the case of the prosecution. CONFESSIONAL STATEMENT OF ACCUSED AND CONSEQUENTIAL RECOVERIES. In the present case, as stated supra, PW-1, father of the deceased, filed a report with the police for missing of his son on 10.11.1996 which was registered as Crime No. 509 of 1996 Exhibit-P1. In the present case the accused after surrendering before the Court of Judicial Magistrate, Mannarkudi on 14.11.1996 also gave his companyfessional statement Exhibit-50 on 19.11.1996 in the presence of Rajaraman PW-58, Village Administrative Officer for the number-municipal area of Chidambaram, wherein in very clear terms he admitted his crime as is presented by the prosecution. After the surrender of the accused on 14.11.1996 he was lodged in the Central Prison at Tiruchi. Prosecuting agency in Crime No. 509/96 filed a petition before the Judicial Magistrate, Chidambaram for the police custody of the accused U s 167 of Cr. P.C., which was allowed by the Court for five days from 18.11.1996 on the companydition that the accused should be produced before a Doctor in the Government Hospital, Chidambaram at 10.00 a.m. daily for medical check up and at 1.30 a.m. On 19.11.1996 the accused made a voluntary companyfession as stated hereinabove. Also it has been admitted by the Trial Court as also by the High Court that at numberstage of trial there is any allegation of torture of the accused in the hands of the police, which clearly proves that the statement made by the accused on 19.11.1996 was given voluntarily and is an admissible piece of evidence. The High Court merely on an assumed basis held that the companyfessional statement companyld number have been voluntarily given by the accused without referring to any particular evidence in support of the said companyclusion. The companyfession was given by the accused in presence of Rajaraman PW-58, Village Administrative Officer Mr. Subramanian assistant of PW-58, who are totally independent persons. In the case of Amitsingh Bhikamsingh Thakur v. State of Maharashtra reported in 2007 2 SCC 310 this Court had said that, when on the basis of information given by the accused there is a recovery of an object of crime which provides a link in the chain of circumstances, then such information leading to the discovery of object is admissible. We may at this stage, would like to state the proposition of law that only such information which is found proximate to the cause of discovery of material objects, alone is taken as admissible in law and in the present case there are lot of materials which were recovered at the instance of such companyfessional statement made by the accused only. We may detail out such material findings in this case. At the instance and in pursuance of the said companyfessional statement given by the accused PW-78, Police Inspector, Annamalai Nagar Rajaraman PW-58, Village Administrative Officer Mr. Subramanian assistant of PW-58 along with other witnesses went to the south canal of the KRM Hostel at about 7.30 a.m. where he had thrown the head of the deceased after putting it in a zip bag and since the water level of the canal was high, Fire Service and University Authorities were requested to drain the water, which was accordingly done and in the meantime at about 8.45 a.m. at the instance of accused only MO-3, a rexine bag, was recovered which companytained two numberebooks belonging to the deceased MOs 4 5. Thereafter, after producing the accused before the Doctors of Govt. Hospital at 10.00 a.m. as per the directions of the companyrt, the accused, took PW-78 along with other witnesses to Room No. 319 and from there material objects from 9 to 15 and 29 were recovered which included three knifes, one blue companyour small brief case, among others and from Room No. 323 and 325 material objects from 30 to 33 were recovered which included blood stained cement mortar. At about 4.00 p.m. when the search party returned to the boat canal, the zip bag MO-22 companytaining a severed human head was recovered at 4.30 p.m. In the instant case the fact that the severed head of the deceased-Navarasu was recovered from the specific place which was indicated and identified by the accused. The recovery of other material objects at the indication instance of the accused creates generates enough incriminating evidence against him and makes such part of the companyfessional statement clearly admissible in evidence. The fact that the skull found in the water canal of the university belonged to Navarasu-deceased is proved from the evidence of Dr. Ravindran PW-66, Dr. Venkataraman, PW-52 and G.V. Rao PW-77. PW-66 in his evidence has stated that the deceased appear to have died because of decapitation of injuries and that the injury is antemortem. The Doctor also opined that a sharp cutting weapon would have been used for causing injuries. He further stated in his evidence that severing of head and removal of the muscles and nerves of limbs companyld have been done by MOs 9 to PW-66 also opined that both the torso and head belongs to one and the same person. Also from the evidence of Dr. Venkataraman, PW-52 Parasu Dental Clinic, Adyar, Madras it is found that he had given silver filling on the right upper first molar of the deceased and that he had removed the left upper milk tooth and removed the root thereof and the said fact was also clearly and rightly found in the post mortem companyducted by PW-66 on the head recovered from the boat-canal. The said fact was also proved from the DNA test companyducted by PW-77. PW-77 had companypared the tissues taken from the severed head, torso and limbs and on scientific analysis he has found that the same gene found in the blood of PW-1 and Baby Ponnusamy were found in the recovered parts of the body and that therefore they should belong to the only missing son of PW-1. In the present case Trial Court relied upon the superimposition process test made by Dr. Jayaprakash PW-65, Assistant Director, Forensic Science Department, Madras, who stated in his evidence that the skull recovered was of Navarasu. Therefore, from the evidence of PWs 65 66 it becomes amply clear that the skull recovered from the boat canal is of Navarasu only. Now, so far as the recovery of limbs and torso of the deceased-Navarasu is companycerned, we would like to detail the recovery of the same, their identification and also their relation insofar as the companyfessional statement made by accused is companycerned. On 7.11.1996 at about 6.00 p.m. Prakash PW-53 the companyductor of Bus bearing number T.B.01-2366 having route No. 21G from Thambaram suburban of Chennai City to Paris Corner found a male torso under the last seat of the bus packed in white blood stained polythene bag with red letters marked as MO-16 and thereafter Crime No. 1544 of 1996 case was registered and investigation was started by G. Boopathy PW-55, Inspector of Police, E.5, Pattinapakkam PS, Chennai. Dr. Ravindran PW-66 companyducted autopsy post-mortem at 10.00 a.m. on 8.11.1996 and he found that the deceased have died of decapitation of injuries, he opined that the injuries found on the torso and skull were anti-mortem and the deceased would appear to have died of decapitation and he further stated that the respective surface of the fifth cervical vertebra of the head are reciprocally fitting into the companyresponding surface of the sixth cervical vertebra of the torso and this articulation was exact in nature and hence he opined that the head and torso belonged to one and the same person. The other limbs of the deceased were recovered by Gopalan PW-44, Sub-Inspector in Marakkanam Police Station on 21.11.1996 in a pale-coloured with yellow, red and green checks in a lungi-like bed-sheet and along with it was torn polythene bag and a pale cloth thread. In the present case there is numberdirect evidence to prove that the accused had himself taken the torso and limbs of the deceased to Madras and threw the limbs somewhere while transit to Madras and also that accused carried the parcel of torso to Madras and dropped it in the bus No. 21G at Tambaram but, there is only circumstantial evidence. One of the clinching evidence against the accused is the two suitcases MOs 13 14. Raja Chidambaram PW-37, the room mate of the accused, stated in his evidence that the two suitcases in which the blood of the deceased was found belong to the accused. He also stated that MO-22, which is a bag in which the head of the deceased was recovered, also belong to the accused. Shagir Thabris PW-38 also companyroborated the said fact in his evidence. Blood found in the suitcases matched with the blood of the deceased which is blood group A. It is also proved from the evidence of the students adduced in the case that foul smell was emanating from the said two suitcases and that when accused was asked about the said smell, he only replied that it is because of Biryani, which his mother had given him. Subba Vankatesan PW-28, auto driver, has affirmatively stated that the accused had taken out those two suitcases with him in his auto rickshaw on 06.11.1996 when he dropped him at Chidambaram Railway Station. The hostel chowkidar examined as PW-29 Vijayarangam companyroborated the said fact. The students of the hostel, Senthilkumar PW-40, Joe Bulgani PW-41, number only spoke about the foul smell emanating from the room where those suitcases were kept but also of the fact that the accused had brought those two suitcases with him when he came back to the hostel on 08.11.1996 morning. These are indeed circumstantial evidence but all leading to one companyclusion that the accused is guilty of the offence of killing the deceased. There is however some doubt with regard to the place of occurrence but there is also strong and companyent evidence to indicate that the room mates of the accused, i.e., PWs 37 and 38, were watching a cricket match during the entire afternoon, evening and till late night on 06.11.1996 in the TV room, and the accused had the room Room No. 319 all to himself in the afternoon and evening upto 11.00 p.m. The accused left the said room with two suitcases at 8.30 p.m. which is proved by way of evidence of the watchman and auto driver. The room mate of the accused, viz., PW-38, came back to Room No. 319 at about 11.00 p.m. and slept and on the next day went home. There are enough circumstantial evidence, as discussed above, to hold that it is numbere else but the accused who companyld have caused the companycealment of torso and limbs because it was the accused who had severed the head of deceased-Navarasu as found earlier and, therefore, he must have been in possession to the torso and limbs, which were also subsequently recovered and were also proved to be that of deceased-Navarasu. Therefore, if we look at the case, we find that the prosecution has succeeded in proving its case on circumstantial evidence. In the present case all the witnesses are independent and respectable eye-witnesses and they have number been shown to have any axe to grind against the accused. And from the evidence of the several witnesses, as mentioned above, it is clear that the accused nurtured ill feeling against the deceased as the deceased refused to write the record numbere for accused that the deceased was last seen with the accused in the afternoon of 06.11.1996 and he was searching for him very eagerly that the companyduct of the deceased was very weird and strange and the bags suitcases kept by him also produced stinking smell the recovery of skull from canal water, material objects, like, numbere books of deceased, gold chain, blood stained bags, knifes etc., and also the evidence of PW-66, PW-65 and PW-77 who have categorically stated that the skull, torso and limbs recovered were of the deceased only. It is well-settled proposition of law that the recovery of crime objects on the basis of information given by the accused provides a link in the chain of circumstances. Also failure to explain one of the circumstances would number be fatal for the prosecution case and cumulative effect of all the circumstances is to be seen in such cases. At this juncture we feel it is apposite to mention that in the case of State of Karnataka v. Yarappa Reddy reported in 1999 8 SCC 715 this Court has held that the companyrt must have predominance and preeminence in criminal trials over the action taken by the investigating officers. Criminal justice should number be made a casualty for the wrongs companymitted by the investigating officers in the case. In other words, if the companyrt is companyvinced that the testimony of a witness to the occurrence is true the companyrt is free to act on it. Hence, minor loopholes and irregularities in the investigation process cannot form the crux of the case on which the respondent can rely upon to prove his innocence when there are strong circumstantial evidences deduced from the said investigation which logically and rationally point towards the guilt of the accused. Therefore in our companysidered opinion prosecution has established its case on the basis of strong and companyent circumstantial evidence and that on the basis of the circumstances proved, there cannot be any other possible or plausible view favouring the accused. The view taken by the High Court is totally erroneous and outcome of misreading and misinterpreting the evidence on record. In view of the aforesaid discussion, facts and circumstances of the case, we are of the companysidered view that the High Court erred in reversing the order of companyviction recorded by the trial Court as the prosecution has established its case.
1994 SUPPL. 4 SCR 723 The Judgment of the Court was delivered by SAHAI, J, Merger under the Companies Act, 1956 in brief the Act, of the two big companypaniesone, Hindustan Lever Limited HLL , a subsidiary of Uni Lever UL , London based multi national companypany, and other Tata Oil Mills Company Ltd. In brief TOMCO the first Indian companypany found in 1917 and public since 1957 which has been found by the High Court to be still number financially insolvent or sick companypany was unsuccessfully challenged in the High Court by few rather numberinal shareholders of TOMCO, Federation of Employees Union of both the TOMCO and HLL, Consumer Action Group and Consumer Education land Research Centre. The attack varied from statutory violation. procedural irregularities of provision of the Act to ignoring effect of the provisions of Monopolies Restrictive Trade Practices Act, 1969 under valuation of Shares, its preferential allotment on less than the market price to the multi national, failure to protect the interest of employees of both the companypanies and above all being violative of public interest. The High Court was number satisfied that either the merger was against public interest or that the valuation of the shares was prejudicial to the interest of the shareholders of TOMCO or that the interest of the employees was number adequately protected. It was held that there was numberviolation of Section 391 l a of the Act. and the claim that the disclosures in the explanatory statement were number as required was without basis as it was number established that the statement did number disclose companyrect financial position of TOMCO. Nor there was anything to show that the material was number disclosed. The Court held that the petitioner failed to establish any fraud or prejudice. On valuation of share for exchange ratio the Court found that a well reputed valuer of a renowned firm of chartered accountants and a director of TOMCO determined the rate by companybining three well known methods. namely, the net worth method, the market value method and the earning method. The figure so arrived companyld number be shown to be vitiated by fraud and mala fide and the mere fact that the determination done by slightly different method might have result in different companyclusion would number justify interference unless it was found to be unfair. And in that the petitioner failed miserably. The High Court did number agree that the approval to scheme of merger should be withheld till the companyplaint filed before Monopolies Restrictive Trade Practices Commission was number finally decided as the jurisdiction exercised by the High Court under the Act and that by the Commission under MRTP Act were entirely different. Nor did it find any merit in the challenge that interest of employees of the two companypanies was number adequately taken care of. It was held that service companyditions of TOMCO, the transferor companypany, having been protected it companyld number claim it to be prejudicial either because they were number assured of same companyditions of service as was operative in HLL or that there was numbersimilar provision protecting the interest of HLL employees. The apprehension of the employees against probable retrenchment as the employees of HLL were already surplus was rejected as of numbersubstance since such disputes if necessary companyld be raised in labour Court. On preferential allotment of shares to UL on less than market value the Court held that HLL was holder of 51 share from before any allotment therefore the allotment which placed them at par with same holding was neither illegal number violative of public interest. Same .grievances have been reiterated by the shareholders, the Employees Union and the Consumer Action Group before this Court with fresh dressings and flourish. The sentinel nature of jurisdiction exercised by the High Court in Company jurisdiction was emphasised with vehemence. It has urged that the High Court which is expected to act as guardian in companypany matters failed to exercise its jurisdiction and was swayed by companysiderations which were neither legal number relevant. Attempt was made to show that the determination of valuation was vitiated as the chartered accountant to whom the duty was entrusted did number perform its functions objectively and in accordance with settled financial numberms and practice and its action was vitiated as he was one of the directors of the TOMCO. Comparative figures of the shares of the two companypanies then-market value, their holding in the market etc. were placed to demonstrate that the calculation was vitiated. But what was lost sight of that the jurisdiction of the Court in sanctioning a claim of merger is number to ascertain with mathematical accuracy if the determination satisfied the arithmetical test. A companypany companyrt does number exercise an appellate jurisdiction. It exercises a jurisdiction founded on fairness. It is number required to interfere only because the figure arrived at by the valuer was number as better as it would have been if another method would have been adopted. What is imperative is that such deter-mination should number have been companytrary to law and that it was number unfair for the shareholders of the companypany which was being merged. The Courts obligation is to be satisfied that valuation was in accordance with law and it was carried out by an independent body. The High Court appears to be companyrect in its approach that this test was satisfied as even though the Chartered Accountant who performed this function was a director of TOMCO but he did so as a member of renowned firm of chartered accountants. His determination was farther got checked and approved by two other independent bodies at the instance of shareholders of TOMCO by the High Court and it has been found that the determination did number suffer from any infirmity. The companypany companyrt, therefore, did number companymit any error in refusing to interfere with it. May be as argued by the learned companynsel for the petitioner that if some other method would have been adopted probably the determination of valuation companyld have been a bit more in favour of the shareholders. But since admittedly more than 95 of the shareholders who are the best judge of their interest and are better companyversant with market trend agreed to the valuation determined it companyld number be interfered by companyrts as, certainly, it is number part of the judicial process to examine entrepreneurial activities to ferret out flaws. The companyrt is least equipped for such oversights. Nor, indeed, is it a function of the judges in our companystitutional scheme. We do number think that the internal management, business activity or institutional operation of public bodies can be subjected to inspection by the Court To do so, is incompetent and improper and, therefore, out of bounds. Nevertheless, the broad parameters of fairness in administration, bona fides in action and the fundamental roles of reasonable management of public business, if breached, will become justiciable. Fertiliser Corporation Kamgar Union Regd. , Sindri Ors. v. Union of India Ors., 1981 2 S.C.R, 52. See Buckley on Companies Act, 14th Ed. P.473 474 Palmer on Company Law, 23rd Ed. para 79.16. Nor is there much merit in the claim of the employees that their interest had number been adequately protected. The scheme of amalgamation provides that all the staff, workmen or other employees in the service of the transferor companypany TOMCO immediately preceding the effective date shall become the staff, workmen and employees of the transferor companypany. Clause 11.1 provides that their services shall be deemed to have been companytinuing and number have been interrupted- Clauses 11.2 and 11.3 protect the interest by providing that the terms and companyditions of such employees shall number be less favourable and all benefits such as PF etc. shall stand transferred to the HLL. The grievance of the employees that numbersafeguard has been provided for Hindustan Lever Employees Union appears to be off the mark as it is the interest of the employees of TOMCO which had to be protected. Even the submission that merger will create unemployment or that it may result in many employees of the TOMCO being rendered surplus does number carry much weight as these are matters which can be taken care of by the Labour Court if the companytingency arises. The learned companynsel for the petitioner time and again took strong exception to the observation made by the High Court that any dispute about retrench-ment etc. companyld be. adjudicated by the Labour Court. He vehemently submitted that the availability of remedy after retrenchment should number have companyoured the vision of the companyrt to adjudicate upon the reasonableness of the scheme. The submission overlooks the primary duties and functions of a companypany companyrt in matters of merger. When the companyrt found that service companyditions of the merged companypany shall number be to their prejudice it was fully justified in rejecting the claim of employees as it was neither unfair number unreasonable. Further the Court in its anxiety to be fair to the employees recorded the statement of the learned Advocate General who appeared for HLL that numberemployee of HLL has been rendered surplus and in such companytingency the companypany has resorted to friendly handshake by either giving lump sum or pension. A scheme of amalgamation cannot be faulted on apprehension and speculation as to what might possibly happen in future. The present is certain and taken care of by Clauses 11.1, 2 and 3 of the scheme. And unfriendly throwing out being amply protected by taking recourse to Labour Court numberunfairness arises apparent or inherent. Nor the claim that merger shall result in, synergies can render the scheme bad. Improved technology and scientific method results in better employment prospects. Anxiety should be to protect workers and number a obstruct development and growth May be that advanced technology may reduce the manpower but so long those who are working are protected they are number entitled to hinder in modernisation or merger under misapprehension that future employment of same number of workers may stand curtailed., The wage differential arising between employees of two company-panies cannot result in making the merger as unfair since the service companyditions of TOMCO workers having been protected they cannot claim that unless they are paid the same emoluments as is being paid by Hindus-tan Lever the merger was unjust. Various subsidiary submissions that the workers, shareholders were number permitted to attend the meeting or that material facts were companycealed from them, does number appear to be companyrect as when more than 95 of the shareholders have agreed to the valuation determined by the chartered accountant all these procedural irregularities cannot vitiate the determinations. What requires, however, a thoughtful companysideration is whether the companypany companyrt has applied its mind to the public interest involved in the merger. In this regard tie Indian law is a departure from the English law and it enjoins a duty on the companyrt to examine objectively and carefully if the merger was number violative of public interest. No such provision exists in the English law. What would be public interest cannot be put in a straight jacket. It is a dynamic companycept which keeps on changing. It has been explained in Blacks Law Dictionary as, something in which the public, the companymunity at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does number mean anything so narrow as mere curiosity, whereas the interest of the particular locality which may be affected by the letters in question, interest shared by the citizens generally in affairs of local, State or national Government. It is an expression of wide amplitude. It may have different companynotation and un-derstanding when used in service law and yet a different meaning in criminal law than civil law and its shade may be entirely different in Company Law. Its perspective may change when merger is of two Indian companypanies. But when it is with subsidiary of foreign companypany the company-sideration may be entirely different. It is number the interest of shareholders or the employees only but the interest of society which may have to be examined. And a scheme valid and good may yet be bad if it is against public interest. Section 394 casts an obligation on the companyrt to be satisfied that the scheme for amalgamation or merger was number companytrary to public interest. The basic principle of such satisfaction is numbere other than the broad arid general principles inherent in any companypromise or settlement entered between parties that it should number be unfair of companytrary to public policy or unconscionable. In amalgamation of companypanies, the companyrts have evolved, the principle of, prudent business management test or that the scheme should number be a device to evade law. But when the companyrt is companycerned with a scheme of merger with a subsidiary of a foreign companypany then the test is number only whether the scheme shall result in maximising profits of the shareholders or whether the interest of employees was protected but it has to ensure that merger shall number result in impeding promotion of industry or shall obstruct growth of national economy. Liberalised economic policy is to achieve this goal. The merger, therefore, should number be companytrary to this objective. Reliance on English decision for Custina Re Haare, 1933 AER Ch. 105 and Bugle Press LIC, 1961 Chancery Division 270 that the power of the companyrt is to be satisfied only whether the provisions of the Act have been companyplied with or that the class or classes were fully represented and the arrangement was such as a man of business would reasonably approve between two private companypanies may be companyrect and may numbermally be adhered to but when the merger is with a subsidiary of a foreign companypany then economic interest of the companyntry may have to be given precedence. The jurisdiction of the companyrt in this regard is companyprehensive. In this case it was specifically claimed that the agreement was company-trary to public interest. It was supported by relying on the terms of agreement wherein it is mentioned that immoveable assets of TOMCO, except those which are specifically excluded, shall stand, transferred to HLL. It was urged that even though the valuation of such assets was nearly Rs. 800 crores it was being transferred for Rs. 30 crores only. Another objection violating public interest, according to the learned companynsel, was that as a result of merger the share holding of UL from 51 was reduced to approximately 49, but it was being brought on par by transferring 29,84,43,437 equity shares by preferential allotment by reducing the price of shares with the result that the multi-national shall have enormous advantages which is number companyducive to the society. The learned companynsel submitted that there were only two renowned companypeting companypanies who were manufacturing soap and detergent. With the merger of TOMCO with HLL there would be numbercompetition and it would result in creating virtual monopoly in favour of HLL which companyld result number only in deterioration of quality, but in escalation of price. The learned companynsel pointed out that even though HLL was a subsidiary of UL and claims to have the benefit of technical know-how etc., yet the quality of soaps produced by TOMCO was much better as companypared to HLL. In reply it was urged that the maintenance of 51 of paid-up equity share of UL was distinctively advantageous to HLL because the UL has become a source of major strength of HLL and has been responsible in several ways for its phenomenal growth and prosperity, This status, it was urged, enable HLL to have from UL free of companyt the benefits of Research and Development technology, know how, marketing support, both domes-tic and international including brand names, managements systems, train-ing facilities and other resources in numbermal companyrse of business. It was further urged that as a result of HLL being a subsidiary of UL, HLL is able to utilise international brand names of UL, such as soaps under the brand names Lux, Lux International, Lifebuoy, Pears, Dove, Surf, Sunlight, etc, It was urged that the price of Rs. 105 per share companyprising of Rs. 10 towards the capital and Rs. 95 towards premium for preferential allotment to UL was worked out on the basis of numberms jointly evolved by Apex Chambers of Commerce and industry operating at the national level, such as ASSOGHAM with Public Financial Institutions which own substantial shareholding in the publicly quoted companypanies, including HLL. It was further stated that the companypany had taken advice from the Merchant Banking Division of Industrial Credit Investment Corporation of India Limited with regard to fair price for the proposed preferential allotment to UL. The figure arrived at by the HLL was approved, it was stated by the Merchant Banking Division of Industrial Credit Investment Corpora-tion of India Ltd. It was pointed out that number only the figure was found to be fair and reasonable by the authorities, but it was ensured further that UL will number transfer the shares for a minimum period of 7 years from the date of allotment and in the event of UL desiring to sell these shares at any time after seven years, but within 12 years from the date of the allotment, they would offer do so at the first instance in favour of other members of the companypany in fair and suitable manner at a price worked out by reference to price earning multiple of 15 as per the last published accounts of the companypany available at the time of such disposal. It was also urged that the price of Rs. 105 was fixed in accordance with the new industrial policy of the Government of India announced on 24th July, 1991. The learned companynsel urged that in pursuance Of this policy, on 29th May, 1992 the Government of India repealed the Capital Issues Control Act, 1947 by Ordinance No, 9 of 1992 with the result that there was numbercontrol on the issues of shares. The determination, it was claimed, was in accordance with the guidelines issued by the SEBI on 11th and 17th June, 1992 which required existing companypanies wishing to raise foreign equity upto 51 by taking a decision of the shareholders in a special resolution under Section 81 1 A of the Act. The learned companynsel submitted that even though subsequently the State Bank of India has altered its policy, but that would number affect the determination or valuation done earlier as it was in accordance with the then existing guidelines and was approved by nearly 99 of the shareholders of the companypany. The learned companynsel urged that in these circumstances, the High Court having found that the price of Rs. 105 having been worked out on the basis of price earning multiple of 1.5 based on the last published balance sheet of HLL, it was fair and reasonable and it was number liable to interference by this Court. Reliance was placed on Needle Industries India Ltd. Ors. v. Needle Industries Newey India Holding Ltd. Ors., 1981 3 SCC 333, where this Court approved the principle laid down by Lord Davey in Hilder v. Dexter, 1902 AC 474 at 480 that there was numberlaw which obliged a companypany to issue its share at par because they were saleable at a premium in the Market. It was vehemently argued that since it were the shareholders who were primarily companycerned with the companypanys finances and they have decided almost unanimously to allot the share to the parent companypany at the price of Rs. 105, it cannot be urged that the members of the HLL were number acting in the interest of the companypany as a whole. Each of these challenges claimed to be violative of public interest have to be examined in the prevailing atmosphere which opted for liberalisation of the Government policies to promote economic growth of the companyntry. What is remarkable is that the Legislature itself has amended Foreign Exchange Regulation Act, 1973 by Act 29 of 1993 FERA for short , the Monopolies and Restrictive Trade Practices Act, 1969 and Companies Act, 1956 by Act of 58 of 1991, The amendment in MRTP Act was effected as The basic philosophy behind the MRTP Act was never to inhibit industrial growth in any manner but to ensure that such growth is channelised for the public good and is number instrumental in per-petuating companycentration of economic power to the companymon detriment. With the growing companyplexity of industrial structure and the need for achieving economies of scale for ensuring higher productivity and companypetitive advantage in the international market, the thrust of the industrial policy has shifted to companytrolling and regulating the monopolistic, restrictive and unfair trade practices rather than making it necessary for certain undertakings to obtain prior approval of the Central Government for expansion, establishment of new undertakings, merger, amalgamation, take over and appointment of Directors. It has been the experience of the Govern-ment that pre-entry restriction under the MRTP Act on the investment decision of the companyporate sector has outlived its utility and has become a hindrance to the speedy implementation of industrial projects, In pursuance of this objective, Sections 20 to 26 were repealed. Section 23 of it which empowered the Commission to examine the scheme of amalgamation or merger is numbermore on the statute book. The argument of the Petitioners that the Commission being companyrt of primary jurisdiction the Company Court should have stayed its hands and awaited the decision of the Commission does number appear after amendment to be sound. Effect of the merger resulting in monopoly is already pending before the Commission. Therefore, numberfurther companyment is called for. In FERA there was a restriction on holding of assets by number-residents under Section 11 of the Act. Section 29 prohibited a companypany which was number incorporated in India or in which the number-resident interest was more than 40 from estabushing in India a branch, office or any part of the undertaking without permission from the Reserve Bank of India. Section 31 prohibited any companypany in which number-resident Indian had more than 40 share from acquiring or holding any immovable property in India. By Act 29 of 1993 Section 11 has been repealed and Sections 29 and 31 have been amended and there is numberrestriction number on a number-resident companypany holding in excess of 40 share. In Companies Act, Section 108-A to 108-I have been added. The scheme of amalgamation does number run companynter to any legislative provision of policy of the Government. The claim of the Petitioners that the transfer for a paltry sum of Rs.30 crores was, mala fide as it was quid pro quo arrangement between UL and Tata Sons Limited by which the immovable assets of TOMCO were virtually given to Tata Sons Limited and in lieu of UL has been allotted 2984347 equity shares of the face value of Rs. 10 each at the price of Rs. 100 per share so as to ensure that the share of UL which stood diluted companytinued to remain at 51 was number found to have any merit as the valuation was determined by renowned and authorised valuers. It was held that sale by open public auction or inviting tenders from general public may have fetched more price due to companypetition, but that companyld number result in vitiating the determination of the valuation. The amalgamation cannot be faulted for this reason. Even assuming that the assets are being transferred for a very meager sum but that by itself would number render the agreement bad or against public policy. Once the FERA was amended and assets of the Indian companypany companyld be transferred to foreign companypany then the amalgamation cannot be withheld when the shareholders themselves did number raise any objection number was it raised by financial institutions or statutory bodies. The challenge, therefore, founded on transfer of assets at lower price cannot be upheld as violative of public interest. Transfer of share to a foreign companypany on under valuation is of companyrse a matter of companycern. It is true that the transfer of shares by one companypany to another companypany is primarily to be determined by the shareholders and, therefore, if the 99 are of the view that the valuation of the shares was reasonable and fair then the companyrt should be slow to interfere with it. But what is necessary to be emphasised is that a shareholder may number be interested in the ultimate effect of allotting shares to a multinational on a low price valuation, but the companyrt certainly is. For instance, if the value of the share which has been determined at Rs. 105 for allotment to HLL is hypothetically determined, say at Rs. 210, then the result would be that the UL will have to pay more in lieu of getting the shares and that companyld definitely bring more foreign exchange to the national stream. It is just one illustration to demonstrate that how low pricing of the valuation of share effects the public interest. That the valuation was low-priced was found even by the High Court. Therefore, it is number open to the respondents to argue that the valuation of Rs, 105 having been accepted by majority of almost all the shareholders, numberpublic interest is involved in it. No further need be said as allotment of shares to UL at Rs. 105 is number approved by the Reserve Bank of India. It was been challenged before the High Court and is pending adjudication. Even though I have agreed with Brother Sen, J. that the appeals and petitions are liable to be dismissed, but I have added a few words to highlight the expansive power of the companyrt in public interest while approving the scheme for amalgamation between a subsidiary companypany of a multi-national and an Indian companypany in the liberalised economic policy. SEN. J. A Scheme of Amalgamation of two Companies - Tata Oil Mills Company Limited and Hindustan Lever Limited - is the subject matter of dispute in this case. By an order dated 3rd March, 1994, the Court under Section 391/394 of the Companies Act sanctioned the Scheme of Amalgamation of the Tata Oil Mills Company Limited TOMCO , the transferor, with the Hindustan Lever Limited HLL , the transferee. Aggrieved by the said Judgment and order dated 3.3.94, sanctioning the Scheme of Amalgamation as many as five appeals were preferred under Section 391 7 of the Companies Act, 1956 in the Bombay High Court. Appeal No. 244 of 1994 was filed by the Federation of Tata Oil Mills and Allied Companies Employees Unions in Company Petition No. 332 of 1993 companynected with Company Application No. 250 of 1993. Appeal No. 298 of 1994 was filed by Mr. Rabindra Hazari a shareholder of TOMCO in Company Petition No. 332 of 1993 companynected with Company Application No. 250 of 1993. Appeal No. 224 of 1994 was filed by the Hindustan Lever Employees Union in Company Petition No. 333 of 1993 companynected with Company Application No. 251 of 1993. Appeal No. 301 was filed by Consumer Action Group and other similar Organisations, in Company Petition No, 333 of 1993 companynected With Company Application No. 251 of 1993. Appeal No. 331 of 1994 was filed by the Consumer Education Research Centre in Company Petition No. 333 of 1993 companynected with Company Petition No. 251 of 1993. The Appeal Court dismissed all the five appeals. The appellants have number companye before this Court against the judgment of the Appeal Court dated -18th May, 1994. According to the appellants, the scheme should number be sanctioned for the following reasons Violation of Section 393 1 a of the Act in number making required disclosures in the explanatory statement. Valuation of share exchange ratio is grossly loaded in favour of HLL. Ignoring the effect of provisions of the Monopolies and Restrictive Trade Practices Act the MRTP Act . Interest of employees of both the Companies was number adequately taken care of. Preferential allotment of shares less than market price to Unilever which is number in public interest. Mala fides on account of existence of quid pro quo between Unilever and Tata Sons Ltd. TOMCO manufactures and sells products like soaps, detergents, toiletries and animal feeds. HLL also manufactures and sells similar products. Both the Companies have their registered office at Bombay. TOMCO has more than 60,000 shareholders with the following break-up 22 Tata Group 41 Financial institutions FI 37 General Public HLL has nearly 1,30,000 shareholders with the following break-up 51 Unilever PLC UL - a Company incorporated under the English Companies Act, having its registered office at London. 16 FI 33 General Public Originally, Unilever - the parent Company of HLL - had 100 shareholding in HLL. The declined in the business of TOMCO began in 1990-91. During 1991-92, TOMCO incurred loss of Rs. 13 crores. In the next six months the loss increased to over Rs. 16 crores. The Board of Directors of TOMCO companysidered various alternatives for TOMCO including its association with HLL which was a more prosperous and a larger Company operating in the same field of activities. Accordingly, the Board of Directors of TOMCO put up a proposal before the Board of Directors of HLL. Both availed of he professional service of Mr. Y.H. Malegam, Senior Partner of M s. S.B. Billimoria and Company, Chartered Accountants, former President of Institute of Chartered Accountants and the Director of Reserve Bank of India, for the purposes of evaluation of the share-price of two Companies in order to arrive at a fair share exchange ratio. On 19th March, 1993, Mr. Malegam gave valuation report and recommended an exchange ratio of two equity shares of HLL for every fifteen ordinary shares of TOMCO. The Board of Directors of both the Companies at their separate and inde-pendent meetings accepted the recommendation and approved the Scheme of Amalgamation. The Scheme, inter alia, provides for transfer and vesting in HLL of the Undertaking and business of TOMCO together with assets and liabilities excluding certain assets and or licence rights to use certain premises. Salient features of the Scheme are to be found in Clauses l,7 d , 4, 5, 11 and 13. Clause 1.7 d sets out the details of excluded properties in which TOMCO has numbermore than licensees rights. Clause 4 provides for transfer of 5 assets immovable property to be transferred to companypanies numberinated by Tata Sons Ltd. at fair market value as will be independently assessed. Clause 5 provides that TOMCO shall before or after the effective date transfer to Tata Sons Ltd. or its numberinee certain invest-ments shares owned by TOMCO at the then prevailing market value and in the case of Unlisted shares at a value to be determined by Mr. Y.H. Malegam. Clause 11 provides for transfer of employees of TOMCO to HLL on the basis that their service shall be deemed to be companytinuous and the companyditions of service after the transfer shall number be less favourable. Clause 13 refers to preferential allotment of equity shares to UL of face value of Rs. 10 each at the price of Rs. 105 per share so as to ensure its post amalgamation shareholding level at 51 of the equity capital of HLL. It may be mentioned that i investments shares specified in Clause 5 have been realized and ii Clause 4 has been modified by the Company Court a by providing for transfer to Companies numberinated by the Directors of TOMCO in place of Tata Sons Ltd. and b by naming well reputed Chartered Accountants Government Valuers. In Company Application No. 250 of 1993 filed by TOMCO the Court passed an order of 29th April, 1993 directing to call the meetings of the debenture holders, creditors, ordinary shareholders arid preference shareholders on 29th and 30th June, 1993, naming the Chairman of the meetings and calling upon him to submit the report within 21 days after companyclusion of the meeting, TOMCO filed the Notices and explanatory statements under Section 393 l a of the Act along with a proxy form before the Company Registrar, who after companysidering all objections settled the explanatory statements and approved the disclosures made therein. Individual numberices of the said meetings together with a companyy of the Scheme of Amalgamation, the statement as settled by the Company Registrar and as required under Section 393 l a and a proxy form were sent to companycerned members as required by law On 21st June, 1993 a joint companymunication to shareholders of TOMCO and HLL was also sent. Public numberices of the meetings were also issued through the print media. The meeting of the ordinary shareholders was held on 29th June, 1993 and was attended by 1,294 members holding 85,85,009 ordinary shares and by 1,652 members holding 55,18,251 ordinary shares through proxies. In the said meeting amendment was proposed to the effect that the exchange ratio should be 515 shares in place of 215 shares as envisaged in the Scheme. 99.64 of ordinary shareholders voted against amendment and 99.72 voted in favour of the Scheme as proposed. Debenture holders voted 99, secured creditors voted 100, unsecured creditors voted 84.30 and preference shareholders voted 100 in favour of the Scheme. The Scheme as proposed was thus approved in all the five meetings by 99.72 of equity shareholders in terms of values and 86.72 in terms of number. In Company Application No. 251 of 1993 filed by HLL also similar direction for companyvening meeting of the equity shareholders and creditors were issued by the Court on 29th April for companyvening the meeting on 30th June, 1993. Similar procedure was followed in this also. On 30th June, 1993 shareholders of HLL at their Extraordinary General Meeting approved by the requisite majority the proposed issue of shares to UL pursuant to Section 81 1A of the Act. The meeting of the creditors was held on 2nd July, 1993 under the chairmanship of Chairman of HLL, Mr. S.M. Datta, as directed by the Court, The meeting of equity shareholders was attended by 2,528 members including proxies holding 9,59,27,477 equity shares. In all 13 amendments were proposed but more than 96 voted against the amendments. The creditors also voted for the Scheme. On 2nd August, 1993 Judges summons was taken out by Mr. M.C. Jajoo, praying inter alia for direction to M s. A,F, Ferguson and M s. N.M. Raiji Go., Chartered Accountants, to give their opinion on the valuation report of Mr. Malegatn. The Regional Director and the Official Liquidator were given numberices of the petitions. In pursuance thereof the Regional Director submitted his report on 9th December, 1993 and Official liquidator submitted his report for winding up without dissolution under Section 394 of the Act. On 6th January, 1994 M s. Ferguson and M s. N.M. Raiji by their joint letter with companyy to Mr. Jajoo companyfirmed that the share exchange ratio determined by Mr. Malegam was proper. The facts stated above were numbered in the judgment under appeal and are number in dispute. But a large number of legal issues have been raised in this Courts questioning the Scheme of Amalgamation. Mr. Dholakia, learned Counsel appearing for Mr. Jajoo, one of the shareholders of TOMCO, has questioned the justification of the ratio of allotment .of shares, 2 shares of HLL in exchange of 15 shares of TOMCO. According to Mr. Dholakia, this ratio is entirely unsatisfactory and unfair to the TOMCO shareholders. It has been companytended that he Board of Directors of TOMCO did number explain the Scheme of Amalgamation in the explanatory statement circulated among the shareholders. In particular, how the share exchange ratio - 15 TOMCO shares to 2 HLL shares - was arrived at, was number stated in the explanatory statement. Instead of circulating the valuation reports, TOMCO informed the shareholders that the reports were available for inspection at the registered office of the Com-pany between 11.00 A.M. to 1.00 P.M. on 14 working days. The shareholders were number told that the joint valuer was numbere other than Mr. Malegam, a Senior Partner of M s. S.B. Billimoria and Company, and also a Director of TOMCO. Mr. Malegam companyld number be appointed auditor of TOMCO under Section 226 3 of the Companies Act, 1956. In that view of the matter, Mr. Malegam should number have been appointed Valuer under the Indian Companies Act, 1956. It was next companytended that the reasons for the Board accepting certain proposals to make preferential allotment of shares at Rs. 105 per share has number been properly explained. ICICI had given a valuation report stating that this report was only on the basis of the material supplied by HLL and number on the basis of any independent verification. It is also significant that Mr, Malegam was a Director of ICICI. It was also company-tended that the valuation report was erroneous. A companybination of different methods of valuation was adopted, which was clearly against the law laid down by the Supreme Court in the case of Commissioner of Gift Tax, Bombay v. Smt. Kuswnben Mahadevia, 122 ITR 38. If the valuation was done by the net asset method, the exchange ratio should have been 12 in favour of TOMCO. Moreover, market value of the shares of the two Companies was taken at a point of time when the price of TOMCO shares was the lowest for a period of 27 months. Lastly, it was companytended that the preferential allotment of shares to Unilever was part of the Scheme of Amalgamation. The Board should have explained why Rs. 366 was being paid for every HLL share by TOMCO, when Unilever was paying only Rs. 105 per HLL share. We are unable to uphold any of the above companytentions raised by Mr. Dholakia, The overwhelming majority of the shareholders had approved the Scheme at the meeting called for this purpose and had approved the exchange ratio. In fact, a proposal for amendment of the exchange ratio was also rejected by the overwhelming majority of 99 shareholders. There is numberreason to presume that the shareholders did number know what they were doing. Being dissatisfied with the valuation made by Mr. Malegam, Mr. Jajoo had insisted for independent valuation and that was done. Two independent valuers -A.F. Ferguson and N.M. Raiji Co. - had valued the shares and came to the companyclusion that exchange ratio of 152 was companyrectly determined by Mr. Malegam. Faced with this situation, Mr. Dholakia sought to produce a valuation report made by another valuer, G. Rai Co., Chartered Accountants. According to this report, book value of equity share of TOMCO as on 31. 3.1992 based on audited and printed balance sheet of the Company was Rs. 57. 58 per share whereas book value of equity share of HLL as on 31.12.1992 based on its audited and printed balance sheet was only Rs. 28.84 per share. This, according to Mr. Dholakia, demonstrated the absurdity of the valuation that had been made of the shares of the two Companies The exchange ratio was obviously unfair to the shareholders of TOMCO. This report is produced before this Court for the first time. There was numberdispute as to what should be the book value of TOMCO shares as on 31.3,93, The following share charts of the two Companies were enclosed with the circular letter dated June 21, 1993 addressed to the shareholders of TOMCO and HLL by the Chairmen of two companypanies HINDUSTAN LEVER LTD. EQUITY SHARE DATA The Market Price as on 17.6.1993 was Rs, 375 As at 311292 31.12.91 31.12.90 Face Value Rs 10.00 10.00 10.00 Book Value per Share Rs. 23.80 20.75 27.36 Dividend 42.00 38.50 42.00 Earning per share Rs. 7.03 5.73 6.29 On enlarged capital after the issue of bonus shares in the ratio of 12. THE TATA OIL MILLS COMPANY LTD. EQUITY SHARE DATA The Market price as on 17.6.1993 was Rs. 52.50 As at 31.3.93 31.3.92 31.3.91 Face Value Rs. 10.00 10.00 10.00 Book Value per Share Rs. 29.75 29.45 36.17 Dividend - 12.50 2000 Earning per share Rs. 0.30 0.50 5.19 The Profit Loss Accounts of the two Companies for the last three years were also annexed. It appears that TOMCO made profit of Rs. 5.64 crores in 1990-91. It came down to Rs. 1,13 crores in 1991-92 and ultimately to Rs, 0.65 crores in 1992-93 whereas HLLs profit in 1990 was Rs. 58.74 crores and it went up to Rs. 98.48 crores in 1992, The Market price of TOMCO share truly reflected the bleak outlook of the Company. It has been stated that in the financial year 1992-93 TOMCO had shown a gross profit of Rs. 27.18 crores only after taking credit of Rs. 36.69 crores on sale of investments and Rs, 18.04 crores on aetouttt of refund of Excise Duty pertaining to prior periods. In fact, in the Directors Report of the year 1992-93, it was stated that the Company had suffered severe set back resulting in operating loss. The position got worse in the year 1993-94. The Company suffered operating loss in the region of Rs. 16 crores and had to sell number only investments, but also fixed assets of the Company. In the background of these facts, it cannot be said that the market price as on 17.6.93 did number reflect the true picture of the value of the Companys shares. If the market price of the shares of the two Companies as on 17.6.93 is companypared, the quoted price of HLL was Rs. 375 per share whereas the quoted price of TOMCO was Rs. 52.50 per share. The earning per TOMCO share had companye down from Rs. 5.19 on 31.3.91 to Rs. 0.50 on 31.3.92 and Rs.0.30 On 31.3.93. As against this, dividend paid on HLL shares was 42 in the years ending on 31.12.90 38.50 on enlarged capital after the issue of bonus shares in the ratio of 12 in the year ending on 31.12.91 and 42.00 again in the year ending on 31.12.92. It is true that book value per share of TOMCO was higher than that of HLL. But, even without any bonus issue, the book value of TOMCO shares had companye down from Rs. 36.17 per share on 31.3.91 to Rs. 29.75 per share on 31.3.1993. What ernerges from all these figures is that on the market price basis as On 17.6.93 the last price available before the circular letter dated 21.6.93 issued to the shareholders of the two Companies the exchange ratio of 215 was very fair. If the yield method is adopted, the ratio would be astronomically high in favour of HLL. But, if the book value is taken per share, then TOMCO shares would be of higher value than HLL shares. The question is what method should be adopted for arriving at a proper exchange ratio. The usual rule is that shares of the going companycern must be taken at quoted market value. This principle was also recognised by this Court in the case of Commissioner of Wealth Tax v. Mahadeo John, 86 ITR 621. In this case, Mr. Malegam adopted a companybination of three well-accepted methods to arrive at the fair value of the shares. The methods are I the yield method II tie asset value method and III the market value method. After companysidering all the relevant factors, the valuer recommended in exchange ratio of 2 equity shares of HLL for every 15 ordinary shares of TOMCO. Mr. Dholakia has companytended that a companybination of two methods of valuation was companydemned by this Court in the case of Commissioner of Gift Tax, Bombay v. Smt. Kusumben D. Mahadevia, 122 ITR 38. The valuation of the shares done by Mr. Malegam was clearly erroneous and companytrary to the principles laid down by this Court in that case. The observations made by this Court in Smt. Kusumben D. Mahadevias case were in companynection with the valuation of shares of a going companycern under the provisions of Wealth Tax and Gift tax Acts and the rules framed thereunder. Under those two Acts, at the material time, valuation had to be done on the basis of the price which, in the opinion of the assessing officer, the shares would fetch if sold in the open market. Both Section 6 of the Gift Tax Act and Section 7 of the Wealth Tax Act had adopted the same principle of valuation. If that method of valuation is adopted, then the exchange ratio fixed in this case cannot be described as unfair to the Company s shareholders in any way. If profits earning method had been adopted, the ratio would have been very much worse for TOMCO shareholders. This problem of valuation in the case of amalgamation of two Com-panies has been dealt with by Weinberg and Blank in the book TAKE-OVERS AND MERGERS, in which it has been stated that some of all of the following factors will have to be taken into account in determining the final share exchange ratio The Stock Exchange prices of the shares of the two companypanies before the companymencement of negotiations or the an-nouncement of the bid. The dividends presently paid on the shares of the two company-panies. It is often difficult to induce a shareholder, particularly an institution, to agree to a merger or a share-forshare bid if it involves a reduction in his dividend income. The relative growth prospects of the two companypanies The companyer ratio of after-tax earnings to dividends paid during the year for the present dividends of the two companypanies. The fact that the dividend of one companypany is better companyered than that of the other is a factor which will have to be companypensated for at least to some extent. In the case of equity shares, the relative gearing of the shares of the two companypanies. The gearing of an ordinary share is the ratio bf borrowings to the equity capital. The values of the net assets of the two companypanies. Where the transaction is a thorough-going merger, this may be mere of a talkingpointhon a matter of substance, since what is relevant is the relative values of the two undertakings as going companycerns. The voting strength in the merged enterprise of the shareholders of the two companypanies. The past history of the prices of the shares of the two companypanies. It will, therefore, appear that in case of amalgamation a companybination of all or some of the methods of valuation may be adopted for the purpose of fixation of the exchange ratio of the shares of the two companypanies. It is to be numbered that even in such a situation, the book value method has been described as more of talking-point than a matter of substance. Mr. Malegam adopted the companybination of three well-known methods of valuation of shares to arrive at the exchange ratio of the two Companies. In fact, the, method adopted was explained to the Board of Directors by a letter dated 19th March, 1993 written by S.B. Bellimoria Co. - For the above purpose we have companysidered the yield value, the asset value and the market value of the shares of the two companypanies and have given appropriate weightages to each of the above values. Both companypanies are in similar businesses. Therefore a uniform basis of capitalisation of profits has been adopted in determining the yield value. However, while HL has shown a companysistent growth in its profitability, TOMCOs performance has been more erratic. It has made substantial operating losses in the year ended 31st March, 1992 and in the six months ended 30th September, 1992 for which unaudited figures have been published and its losses during the six months ending 31st March, 1993 are expected to be even larger. Moreover its profits during the years ended 31st March, 1990 and 3lst March, 1991 have been significantly due to exports to the former USSR which exports have number dried up. Taking all these factors into account, for working out the yield value of the TOMCO share we have assumed a figure of future maintainable profits based on its operating results for the years 1981-82 to 1988-89. It is also to be numbered that the financial institutions who held 41 of the shares of TOMCO, did number find any fault in the method of valuation of the shares. Mr. Ashok Desai, appearing on behalf of TOMCO, has argued that the evaluation of shares had to be done according to well-known methods of accounting principles. The valuation of shares is a technical matter. It requires companysiderable skill and experience, There are bound to be difference opinion among Accountants as to what is the companyrect value of the shares of a companypany It was emphasised that more than 99 of the shareholders had approved the valuation. The test of fairness of this valuation is number whether the offer is fair to a particular shareholder. Mr. Jajoo may have reasons of his own for number agreeing to the valuation of the shares, but the overwhelming majority of the shareholders have approved of the valuation. The Court should number interfere with such valuation. It is also difficult to follow the argument that Mr. Malegams report is number acceptable to the TOMCO shareholders, because he was a Director of TOMCO, HLL had numberdifficulty in accepting the share exchange ratio fixed by Mr. Malegam, even though he was a Director of TOMCO, If there was any bias, it should have been in favour of TOMCO and number against TOMCO. This exchange ratio was endorsed by two other eminent firms of Chartered Accountants and also by ICICI. We are unable to uphold the companytention that there was any impropriety in the valuation of the shares. The argument based on Section 226 3 of the Companies Act is misleading, An officer or an employee of the companypany may number be appointed as an auditor. An auditor must be independent of the Board of Directors of the companypany. He is expected to play the role of a watch-dog on behalf of the shareholders of the companypany. But, in this case the two Companies are going to be amalgamated, both the Companies have chosen Mr. Malegam, Director of TOMCO to fix tie share exchange ratio. If HLL agreed to accept Mr. Malegam as the Valuer and there was numberobjection from TOMCO, we fail to see how TOMCO shareholders have been prejudiced. On the question of valuation on shares, another issue has been raised. It was argued that Unilever, a foreign Company, held 51 of shares of HLL. The Scheme envisaged that Unilever will companytinue to hold 51 of the shares of HLL even after amalgamation. It was decided to make preferential allotment of shares to Unilever at a price of Rs. 105 per share, for the purpose of maintaining shareholding of 51 even after amalgamation. For this purpose, two companyditions were imposed Unilever shall number be able to sell the shares allotted to them on preferential basis for a period of 7 years. 2 In case Unilever decides to sell these shares after the expiry of 7 years but before 12 years after the date of preferential allotment, they shall sell the shares to the Indian shareholders of Unilever at a price 15 times earning per share calculated on the basis of the last audited balance sheet. It was companytended by Mr. Andhyarujina, and in our opinion rightly, that these two companyditions are important depreciatory factors in the preferential allotment of shares to Unilever. The shares issued to Unilever would be franked by restrictive companyenants. These shares cannot be company-pared to the other shares of HLL which companyld be freely traded in the market. It was companytended by Mr. Dholakia that a foreign companypany was being given a large interest in the assets of TOMCO at a gross undervalue. We are unable to uphold this argument. The shareholder has numberinterest in the assets of the companypany While the companypany is an existence. It is only at the stage of liquidation of the companypany that the shareholders become inter-ested in the assets of the companypany. The share of any member in a companypany is movable property and transferable in the manner provided by the Articles of the companypany. This is provided by Section 82 of the Companies Act, The definition of goods in the Sale of Goods Act, 1930 specifically includes stocks and shares. A share represents a bundle of rights which include, inter alia, the rights i to elect directors ii to vote on resolutions at meetings of the companypany iii to enjoy the profits of the companypany, if and when dividends is declared and distributed and iv to share in the surplus, if any, on liquidation. In the case of Bacha F. Guzdar v. C.I.T., AIR 1955 SG 74, the position of a shareholder was explained thus There is numberhing in the Indian Law to warrant the assumption that a shareholder who buys shares, buys any interest in the property of the companypany which is juristic person entirely distinct from the shareholders. The true position of a shareholder is that on buying shares he becomes entitled to participate in the profits of the companypany in which he holds the shares, if and when the companypany declares, subject to the Article of Association, that the profits or any portion there of should be distributed by way of dividends among the shareholders. He has undoubtedly a further right to participate in the assets of the companypany which would be left over after winding up. In any event, whether Unilever was paying the proper price for the shares Or number, is a question which is number before the Bombay High Court in a separate proceeding Hindustan Lever Ltd. Ors. v. Reserve Bank of India Ors., Writ petition No, 1666 of 1994. It appears that the Reserve Bank of India has number granted approval to the proposal of alloting 29,84,347 equity shares of Rs. 10 fully paid up at a premium of Rs. 95 per share. According to the guidelines set by the Reserve Bank of India, a premium of Rs. 346 will have to be paid per share In a writ application before the Bombay High Court, HLL has prayed for, inter alia, following orders Petitioner No 1 shall allot 29,84,347 equity shares of Rs. 10 each fully paid up at a premium of Rs. 95 per share to Unilever and appropriate an amount of Rs. 28,35,12,965 ac-cordingly. The difference between Rs. 346 being the premium per share as per the revised guidelines and Rs. 95 being the premium per share approved by the shareholders and the approved Scheme of Amalgamation shall be kept in separate Share Premium Suspense Account by the Company till the final disposal of the Writ Petition. The said Share Premium Suspense Account will be dealt with in accordance with the final judgment of the Court in the Writ Petition. Since the entire question is number pending before the Bombay High Court in another independent proceeding, questioning the price indicated by the Reserve Bank of India, this question cannot be pursued in this proceeding any further. The next point urged by Mr. Dholakia is that proper disclosure of all material facts was number made in the explanatory statement, accompanying the proposal to amalgamate TOMCO with HLL. Their shareholders were number given full particulars on the basis of which they companyld act. Section 393 l a reads as under Where a meeting of creditors or any class of creditors, or of members, or any class of members, is called under section 391 - With every numberice calling the meeting which is sent to a creditor member there shall be sent also a statement setting forth the terms of the companypromise or arrangement and ex-plaining its effect and in particular, stating any material interests of the directors, managing director, managing agent, secretaries and treasurers or manager of the companypany, whether in their capacity as such or as member or creditors of the companypany or otherwise, and the effect on those interests, of the companypromise or arrangement, if, and in so far as, it is different, from the effect on the like interests of other per-sons and The grievance voiced by Mr, Jajoo is number shared be more than 99 of the shareholders. An explanatory statement had been sent on the basis of which Mr. Jajoo had taken inspection of all relevant documents. Notice must be taken of the fact that even after these points were raised in the meeting, the overwhelming majority of shareholders voters for the Scheme. That the explanatory statement was approved by the Registrar, is.it self a relevant factor. A similar question came up for companysideration before a Division Bench of Gujarat High Court in the case of jitendra R. Sukhadia v. Aletnbic Chemical Works Co, Ltd., 1987 3 Company Law Journal 141. That was also a case of amalgamation In that case, it was held that the exchange ratio of the shares of the two companypanies, which were being amalgamated, had to be stated alongwith the numberice of the meeting. However, this ex-change ratio was worked out, however, was number required to be stated in the statement companytemplated under Section 393 l a . In the facts of this case, companysidering the overwhelming manner in which the shareholders, the creditors, the debenture holders, the financial institutions, who had 41 shares in TOMCO, have supported the Scheme and have number companyplained about any lack of numberice or lack of understanding of what the Scheme was about, we are of the view, it will number be right to hold that the explanatory statement was number proper or was lacking in material particulars. There is another aspect of this case. Should the fact that Mr. Malegam was a Director of a Company have been disclosed? Section 393 l a requires particulars to be given of any material interests of some persons companynected with the companypany, including the directors and managing director. The interest that is companytemplated in Section 393 l a is interest material for companysideration of the scheme by the shareholders. It has number been shown that Mr. Malegam had any interest in the scheme. If he had any shares in TOMCO, then his interest would be like that of any other shareholder. His specialised services were utilised for the purpose of arriving at a fair exchange ratio. Both TOMCO and HLL reposed faith in his professional skill. We are of the view that number-disclosure of the fact that Mr. Malegam, a Director of the Company, had been appointed Valuer, will number detract from the Scheme in any way. This will also number amount to suppression of any material interest of a Director in the Scheme. The next question relates to the provisions of Monopolies and Restrictive Trade Practices Act MRTP Act . An argument has been made that the MRTP Commission is seized of the matter and until the MRTP Commission decides, it will be proper to sanction the Scheme. Ms. Indira Jaising, appearing on behalf of Consumer Action Group, has argued that the Monopolies and Restrictive Trade Practices Act, 1969 is a special enactment. The question of merger of HLL and TOMCO has to be companysidered in the background of the provisions of the said Act, Since this very issue is under companysideration by the MRTP Commission, the Court exercising companypany jurisdiction Should hot pass any order Which may prejudice the proceedings before the MRTP Commission. Alternatively, it has been argued that assuming that the jurisdiction of the Company Court is number barred but it is parallel, then as a matter of propriety the Company Court should await the decision of the MRTP Commission with regard to the issues involved. The allegation before the MRTP Commission is that the proposed merger was in violation of the provisions of MRTP Act. The decisive questions whether the issues arising before the MRTP Commission are the same as are number before this Court. It was further argued that even if the proposed amalgamation is sanctioned by this Court, it must be made subject to the final outcome of the proceedings pending before the MRTP Commission. The MRTP Com-mission gravely erred in rejecting the application for interim order under Section 12A of the MRTP Act. It was submitted that the Commission has erred in refusing to pass an interim order on the ground that any interim order passed will take away the jurisdiction of the Company Court. The Commission has jurisdiction, even after deletion of Section 23, to inquire into monopolies and restrictive trade practices. The Commission has over-looked the fact that the allegations made by the aggrieved parties before it, were number based on assumption but on hard facts. Our attention was invited to the Directive Principles of State Policy in Part-IV of the Constitution and it was urged that the economic system should number be operated in a way that results in the companycentration of wealth and means of production to the companymon detriment. In particular, it was emphasised that issuance of preferential shares at a very favourable price to Unilever will companye within the definition of Section 2 e and will amount to restrictive trade practice. This argument of Ms. Jaising was supported by Dr. Dhavan, appear-ing on behalf of the Federation of Tata Oil Mills and Allied Companies Employees Union. It was argued that the Scheme will attract anti-merger jurisdiction of the MRTP Commission straightway. The two big Companies in the same field of companysumer articles are merging to ensure that there was numberinter se companypetition. Under the MRTP Act, injunction can be granted under Section 12A during an enquiry even where the impugned trade practice was likely to affect prejudicially the public interest or the interest of the companysumers generally. The Commission may, for preventing such a situation from developing, restrain the undertaking involved from carrying or any monopolistic or restrictive unfair trade practice until the enquiry is companycluded. It was argued that judgment under appeal has seyerery curtailed the jurisdiction of the MRTP Commission. Lastly, it was companytended that preferential allotment of a large number of shares to Unilever at a throw away price is apart of the Scheme of Amalgamation and it wifl result in Unilevers acquisition of 51 shares in the enlarged Company and thereby Unilever will be able to companytrol the market more effectively. In order to appreciate this argument, it is necessary to refer to the various provisions of the Monopolies and Restrictive Trade Practices Act, 1969 This Act in companysonance with the new economic policy of the Govern-ment has undergone drastic amendment with effect From 27.9.91. The relevant provisions for the purpose of this case are as under 2, In this Act, unless the companytext otherwise requires,- ---------- --------------- ------------ o restrictive trade practice means a trade practice which has, or may have, the effect of preventing, distorting or restricting companypetition in any manner and in particular which tends to obstruct the flow of capital or resources into the stream of production, or which tends to bring about manipulation of prices, or companyditions of delivery or to affect the flow of supplies in the market relating to goods or services in such manner as to impose on the companysumers unjustified companyts or restrictions s trade means any trade, business, industry profession or occupation, relating to the production, supply, distribution or companytrol of goods and includes the provision of any services u trade practice means any practice relating to the carrying on of any trade, and includes - anything done by any person which companytrols or affects the price charged by, or the method of trading ofs an trader or any class of traders a single or isolated action of any person in relation to any trade Section 10 empowers the Commission to enquire into any restrictive trade practice or any monopolistic trade practice. Section 12A empowers the Commission to issue temporary injunction, if it is proved that any undertaking or any person is carrying on, or is about to carry on, any monopolistic or any restrictive, or unfair, trade practice and such monopolistic or restrictive, or unfair, trade practice is likely to affect prejudicially the public interest or the interest of any trader, class of traders of traders generally or of any companysumer or companysumers generally. Chapter III of MRTP Act dealt with companycentration of economic power. Part-A of this Chapter Sections 20 to 2 5 and also Section 28 was deleted by the MRTP Act, 1991 with effect from 27.9.91. Part III-A Sections 30A and 30G which dealt with restriction on acquisition and transfer of shares by certain body companyporates was also deleted from the said date Section 23 specifically dealt with merger, amalgamation and take over was to the following effect Merger, amalgamation arid take over. - 1 Notwithstanding anything companytained elsewhere in this Act or in any other law for the time being in force.- a numberscheme Of merger or amalgamation of two or more undertakings, to which this Part applies with any other under-taking b numberscheme of merger or amalgamation of two or mote undertakings which would have the effect of bringing into existence an undertaking to which clause a or clause b of section 20 would apply shall be sanctioned by any Court or be recognised for any purpose or be given effect to unless the scheme for such merger or amalgamation has been approved by the Central Government under this section. The intention behind deletion of Section 23 is obvious the require-ment of prior approval of the Central Government before sanctioning a scheme of merger or amalgamation has been done away with. The effect of the deletion of this section cannot be nullified by giving an unnatural and artificial interpretation of the words of the statute. It is being argued that even though Section 23 has been deleted, their are other provisions in the Act under which it is necessary to have prior sanction of the Central Government or MRTP Commission before a Scheme of Amalgamation or merger can be sanctioned. If this argument is to be accepted, then in the first place it has to be held that the provisions of Section 23 were wholly unnecessary and otiose, because even otherwise sanction or clearance of the Central Government was a companydition prece-dent for effecting a scheme of amalgamation or merger. Such a companystruction must be avoided. The enquiry must be as to what was the mischief which was sought to be cured by the Legislature by the amendment. By deleting Section 23, the Legislature removed the requirement of prior approval of the Central Government to a scheme of merger before the Court companyld sanction it. Section 27A and section 27B are the only sanctions in Chapter III of the Act which have been retained by the Legislature. Section 27 deals with division of undertaking and enables the Commission in the circumstances specified in that section, to pass an order for the division of any trade or undertaking or inter-connected undertaking, into such number of undertakings as the circumstances of the case may justify. Section 27A empowers the Central Government to protect severance of inter-connection between undertakings. Section 27B lays down the manner in which any order passed under Section 27 or Section 27A shall be carried out The provisions as to restriction on the acquisition and transfer of shares by certain bodies companyporate Section 28 to Section 30G have been entirely deleted. The intention of the Legislature is clear. A merger or amalgamation is number number subject to the prior approval of the Central Government. But, if the working of the companypany is found to be prejudicial to public interest or has led to the adoption in monopolistic or restrictive trade practice, the Central Government may .after being satisfied as to the requirement of the section or division of the undertaking, act according to law. We are unable to uphold the companytention of Ms. Jaising that MRTP Commission erred in law in number passing an order of injunction under Section 12A of the Act, restraining the implementation of the Scheme of Amalgamation. We are of the view that it was number necessary to obtain any prior approval from the Central Government or the MRTP Commission before the Scheme companyld be sanctioned by the Court. This requirement has been specifically deleted from the statute. As a result of the amalgamation, if it is found that the working of the Company is being companyducted in a way which brings it within the mischief of the MRTP Act, it would be open to the authority under the MRTP Act to go into it and decide the companytroversy as it thinks fit, Mr. Andhya. Ujina has argued that the companycept of applicability of monopolistic trade practice under Chapter TV or restrictive trade practice or Unfair trade practice under Chapter V, necessitates that there must be a trade as defined .under Section 2 a and trade practice as defined Under Section 2 u . He has further companytended that a companypany when it allots shares is number trading shares. Further under Section 77 of the Companies Act, a companypany cannot buy its own shares. Therefore, there can numberquestion of a companypany trading in its own shares or unlawful trade practice at this stage. This companytroversy has got another aspect which has been highlighted by Dr. Dhavan and Mr R.K. Jain. It has been argued that a very large companypany is companying int. existence which will have substantial share of the market. A foreign companypany will have companytrolling interest in HLL after amalgamation. This is against public policy. In my judgment, what has been expressly authorised by the statute cannot be struck down as being against the public policy. A foreign companypany under the new economic policy of the Government has been allowed to acquire companytrolling share of any Indian companypany. This has been done by express amendment of the Foreign Exchange Regulation Act- Under Section 29 of the Foreign Exchange Regulation Act as it stood originally , a perstui resident outside India or a companypany other than banking companypanies which was number incorporated in India or in which the numberresident interest was more 40, companyld number carry on business in India Or establish in India a branch office or other place of business. Nor companyld such a person or companypany acquire the whole or any part of any undertaking in India of any companypany carrying on any trade, companymerce or industry or purchase the shares in India of any such companypany. The object of Section, 29, inter alia was to ensure that a companypany other than banking companypany in which the number-resident interest was more than 40 must reduce in to a level number exceeding 40 Needle Industries India Ltd, and Others, v. Needle Industries Newey India Holdings Ltd. and others, AIR 1981 SC 1298 . But, number this restriction of 40 has been removed by an amend-ment by the Act 29 of 1993. A companypany in which number-resident interest is more than 40 can carry on business without having to obtain permission from the Reserve Bank of India. The underlying idea of this liberalisation is clear. Non-resident persons were being invited to inves in India and or in Indian companypanies. If any number-resident invests in Indian companypany, it is but natural that dividends payable by an Indian companypany will be enjoyed by the number-resident. All other rights that a shareholder enjoys by virtue of the shareholding will be enjoyed by the number-resident. Merely because a foreign shareholder acquires 51 shares in an Indian companypany it cannot be said that this is against public interest or public policy. In this companynection it should also be numbericed that Section 11 of Foreign Exchange Regulations Act, 1973 which had empowered the Reserve Bank to put restrictions on transfer of any asset in India to a person resident outside India or a person intending to become resident outside India, has number been repealed with effect from 8.1.1993 by the Amending Act 29 of 1993. Here again the intention of the legislature is quite clear. The entire object is to allow the number-residents to do business in India and to deal with assets in India with greater freedom. In view of all these, it is difficult for us to uphold the companytention that the Scheme of Amalgamation is against public interest. Merely because 51 of the shares of HLL is being given to a foreign companypany, the Scheme cannot be said to be against public interest. The Foreign Exchange Regulation Act has been amended specifically to encourage foreign participation in business in India. The bar to haying more than 40 shares in an Indian Company by a number-resident has been hefted. The Amending Act 29 of 1973 is number under challenge. In order to give greater freedom to the companypanies for doing business in India, the MRTP Act has been amended. Prior approval of Government of India is number a necessary for amalgamation of companypanies any more. In fact, it is in public interest that TOMCO with its 60,000 shareholders and also a very large Work-force does number deteriorate into a sick companypany. Nor do we think that public interest which is to be taken into account as an element against approval of amalgamation would include a mere future possibility of merger resulting in a situation where the interests of the companysumer might be adversely effected. If, however, in future the working of the Company turns out to be against the interest of the company-sumers or the employees, suitable companyrective steps may be taken by appropriate authorities in accordance with law. As has been said in the case of Fertilizer Corporation Kamgar Union v. Union of India, 1981 2 SCR 52 at page 77 it is. number a part of the judicial process to examine entrepreneurial activities to forret out flows. The Court is least equipped for such oversights. Nor, indeed, it is the function of the judges in our companystitutional scheme. Now merely because the scheme envisages allot-ment of 51 equity shares to Unilever, the scheme cannot be held to be against public interest. Next it was argued on behalf of the employees of TOMCO that the Scheme win adversely affect them This argument is number understandable. The Scheme has fully safeguarded the interest of the employees by providing that the terms and companyditions of their service will be companytinuous and uninterrupted service and their service companyditions will number be prejudicially affected by reason of the Scheme. The grievance made, however, is that there is numberjob security of the workers, after the amalgamation of the two Companies. It has been argued that there should have been a clause in the Scheme ensuring that numberretrenchment will be effected after the amalgamation of the two Companies. There was numberassurance on behalf of the TOMCO that the workers will never be retrenched. In fact, the performance of TOMCO over the last three years was alarming for the workers. It cannot be said that after the amalgamation they will be in a worse position than they Were before the amalgamation. We do number find that the amalgamation has caused any prejudice to the workers of TOMCO. The stand of the employees of HLL is equally incomprehensible. It has been stated that if the TOMCO employees company-tinue to enjoy the terms and companyditions of their service as before, then two classes of employees will companye into existence, Terms and companyditions of HLL employees were much worse than that of TOMCO employees. If there are two sets of terms and companyditions under the same companypany, then a case of discrimination will arise against the HLL employees. We do number find any substance in this companytention. The TOMCO employees will companytinue to remain on the same terms and companyditions as before. Because of this arrangement, it cannot be said that a prejudice has been caused to HLL employees. They will still be getting what they were getting earlier. TOMCO employees who were working under better terms and companyditions, will companytinue to enjoy their old service companyditions under the new management. Fear has been expressed both by TOMCO employees as well as HLL employees that the results of the amalgamation would necessitate stream-lining of the operations of the enlarged Company and the workers will be prejudiced by it. No one can envisage what will happen in the long run. But on this hypothetical question, the Scheme cannot be rejected. As of number, it has number been shown how the workers are prejudiced by the Scheme. Lastly, there was a vague allegation of mala fide, because of some trade arrangement between Unilever and Tata Sons Limited. It appears that three properties belonging to Tata Sons Limited. were being used by TOMCO as licensee with numberenforceable rights. Occupation was purely permissive. TOMCO never companysidered these properties or rights relating to these properties as their assets. They were never shown in the balance sheet of the Company. Tata Sons companyld get back possession of these properties by revoking the licence. It was number necessary for Tata Sons to obtain the help of HLL or Unilever for getting back the possession. Under the Scheme, the properties are to be transferred at market rate, which has to be independently assessed. The determination of the market price has been entrusted by the Court to a reputed valuer. There is numberreason to doubt their companypetence. No case of mala fide has been established. An argument was also made that as a result of the amalgamation, a large share of the market will be captured by the HLL. But there is numberhing unlawful for illegal about this. The Court will decline to sanction a scheme of merger, if any tax fraud or any other illegality is involved. But this is number the case here. A companypany may, on its own, grow up to capture a large share of the market. But unless it is shown there is some illegality or fraud involved in the scheme, the Court cannot decline to sanction a scheme of amalgamation. It has to be borne in mind that this proposal of amalgamation arose out of a sharp decline in the business of TOMCO. Dr. Dhavan has argued that TOMCO is number yet a sick Company. That may be right, but TOMCO at this fate will become a sick Company, unless something can be done to improve its performance. In the last two years, it has sold its investments and other properties. If this proposal of amalgamation is number sanctioned, the companysequence for TOMCO may be very serious. The shareholders, the employees, the creditors will all suffer. The argument that the Company has large assets is realty meaningless. Very many companyton mills and jute mills in India have become sick and are on the verge of liquidation, even though they have large assets. The Scheme has been sanctioned almost unanimously by the shareholders, debenture holders, secured creditors, unsecured creditors and preference shareholders of both the Companies. There must exist very strong reasons for withholding sanction to such a scheme. Withholding of sanction may turn out to be disastrous for 60,000 shareholders of TOMCO and also a large number of its In view of the aforesaid, the Appeals are dismissed.
Nanavati, J. The appellant was tried along with Pandey Ram Krishnan for companymitting murder of Kittu Muthu Krishnan in Sessions Case No. 95/76. The companyrt of Sessions, Madurai, acquitted both the accused. On appeal by the State, the High Court companyvicted both of them for the offence punishable under Section 302 read with Section 34 IPC. Against the order of acquittal, a revision application was also filed by the brother of the deceased. Pandey has number challenged his companyviction. This appeal is filed by Sudali Madasamy only. In order to prove its case, the prosecution had mainly relied upon the evidence of P.Ws. 1 and 2 and the three dying declarations - Exhs. P1, P15 and P8 of Kittu Muthu Krishnan. The trial companyrt did number believe the evidence of PWs. 1 and 2 and also the dying declarations. It gave 11 reasons in support of its findings. The High Court companysidered each one of those reasons and pointed out that numbere was good enough to sustain the findings. We have companysidered the reasons given by the trial companyrt and we find that they were rightly held number acceptable. On flimsy grounds, the trial companyrt had rejected the evidence of PWs. 1 and 2 and the dying declarations. The High Court has given good reasons for believing the evidence of PWs. 1 and 2 and the dying declarations. The appellant was numbere other than the person who was earlier working with the deceased and whose services were terminated by the deceased. There was enough light when the incident had taken place. The FIR was lodged within 45 minutes. At about 4.30 a.m., Inspector Incharge had taken further statement of the deceased and at 6.45 a.m. his dying declarations was recorded by the Judicial Magistrate. Thus, within a short time, the deceased had disclosed the names of his assailants. It is number possible to accept the companytention of the appellant that as his relations with the deceased were number good, the deceased had falsely involved him because the deceased would number have liked to do so and allow the real culprits to go set free. The dying declarations also receive companyroboration from the evidence of PWs. 1 and 2 who have said that when they heard shouts they came out of the nearby garage where they were working and saw the two accused running away from the place of the incident. They had chased the accused but when they were shown a knife by one of them, they did number pursue them further, returned to the place of the incident and took the injured to the Police Station. Both the witnesses have stated that they knew the accused and the deceased since before the incident. There was numberreason for PWs. 1 and 2 to falsely depose against the accused. The dying declaration - Ex. P8 was recorded by a Judicial Magistrate. The evidence discloses that at that time except the doctor numberone else was present.
CRIMINAL APPELLATE JURISDICTION Special Leave Petition Crl. No. 405 of 1980. Appeal by special leave from the judgment and Order dated 31-10-1979 of the Punjab Haryana High Court in Crl. Appeal No. 986/77. C. Talukdar, Shrinath Singh and M. S. Dhillon for the Petitioner. The Judgment of the Court was delivered by DESAI, J.-While we decline to grant special leave in this case, an unsavoury feature of the judgment which rather stares into our 1154 face, and surfaces at regular intervals, makes it obligatory to make a few observations. Petitioner was companyvicted for having companymitted offences under Section 161 of the I.P.C. and Section 5 2 of the Prevention of Corruption Act and was sentenced to suffer I. for one year on each companynt and on the second companynt, also to pay a fine of Rs. 400/-or in default to suffer further R.I. for three months by the learned Special Judge. Both the Substantive sentences of imprisonment were directed to run companycurrently. Petitioner preferred Criminal Appeal No. 989 of 1977 against his companyviction and sentence to the High Court of Punjab and Haryana at Chandigarh. This appeal came up for final hearing before a learned single judge of the High Court on 31st October, 1979. When the appeal was taken up for hearing, learned companynsel for the petitioner appearing in the High Court did number question either the companyrectness or the legality of the companyviction. This is unquestionable as the High Court has observed while disposing of the appeal that numberarguments on merits are advanced. The High Court then proceeded to companysider adequacy or otherwise of sentence imposed on the appellant before it. The High Court then proceeded to reduce the substantive sentence of the appellant of rigorous imprisonment for one year to the sentence undergone till the date of the judgment of the High Court. While so reducing the substantive sentence the High Court numbericed the following circumstances which in the opinion of the High Court were sufficient to enable it to interfere with the sentences imposed upon the present petitioner. It would be advantageous to extract the relevant observations- The learned companynsel for the appellant has only submitted that the appellant has already been dismissed from service that he is a family man, and that his sentence may be reduced to that already undergone. In my view numberuseful purpose will be served by sending him again to jail to serve his unexpired period of sentence. He has already lost his job. The ends of justice will be amply met if his sentence of imprisonment is reduced to that already undergone and instead sentence of fine is enhanced from Rs. 400 to Rs. 4000 four thousand or in default to suffer further R.I. for one year. I order accordingly. The judgment of the High Court throws numberlight on the question as to how much sentence the appellant had undergone by the time the 1155 High Court released him on bail while admitting his appeal. But it cannot be more than a few days only. Petitioner as pointed out earlier is companyvicted for companymitting offences under Section 161 IPC and 5 2 of the Prevention of Corruption Act. Section 5 2 of the Prevention of Corruption Act reads as under- Any public servant who companymits criminal misconduct shall be punishable with imprisonment for a term which shall number be less than one year but which may extend to seven years and shall also be liable to fine Provided that the companyrt may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. underlining ours The language of the proviso makes it abundantly clear that companyrt is under an obligation to impose a minimum punishment once the companyviction is recorded under Section 5 2 and the minimum punishment of imprisonment is for a term number less than one year. Undoubtedly the proviso companyfers power on the Court to award less than the minimum punishment, if the Court companyvicting and sentencing the accused, is of the opinion that for any special reasons which the companyrt is under an obligation to record in writing, sentence of imprisonment for a term less than the minimum is called for. Conceding that the quantum of sentence is in the discretion of the trial companyrt, where the Legislature stepped in and circumscribed and fettered the discretion by directing imposition of a minimum sentence, the companyrt can exercise its discretion within the limited sphere left open by legislature. The Legislature circumscribed the discretion by requiring the companyrt to impose minimum sentence but left it open to award less than the minimum statutorily prescribed for special reasons. The reasons have to be special reasons. The words special reasons in the companytext in which they are used companyld only mean special to the accused on whom sentence is being imposed. The companyrt has to weigh reasons advanced in respect of each individual accused whose case is taken up for awarding sentence. The word special has to be understood in companytradistinction to word general or ordinary. Now what does term special companynote ? Special means distinguished by some unusual quality out of the ordinary. See Words and Phrases, Permanent Edition, Volume 39A p. 82. Webster defines special as particular peculiar different from others designed for a particular purpose, occasion, or person limited in range companyfined to a definite field of action. Thus anything which is companymon to a large class 1156 governed by the same statute cannot be said to be special to each of them. It would thus unquestionably appear that special reasons in the companytext of sentencing process must be special to the accused in the case or special to the facts and the circumstances of the case in which the sentence is being awarded. The High Court then was under an obligation to award minimum sentence unless the accused advanced special reasons, i.e. special to him in the facts and circumstances of the case and successfully invoked the discretion vested in the Court to award less than the minimum sentence prescribed by law. The Court observes that this appellant companyrupt officer whose companyruption was proved to its satisfaction because the High Court declined to interfere with the companyviction of the appellant for companyruption and who must companysequently or of necessity be dismissed from service, companysidered his dismissal from service as a special reason. Frankly speaking the High Court honestly did number expect any companyrupt officer to be retained in service. Ordinarily a companyrupt official whose companyruption is proved to the hilt is liable to be dismissed, and therefore, this aspect is number special to the appellant. Accordingly if an officer proved to be companyrupt to the satisfaction of the companyrt is liable to be dismissed it cannot influence the question of sentence. Also because it would be true of all public servants dealt with under Section 5 2 of the Prevention of Corruption Act. Another special reason that appealed to the High Court is that appellant is a family man. Possibly the High Court companysidered marriage and children of the appellant as special to him. An unusually large number of the Government officers from amongst those charged with companyruption and companyvicted for the same would be married men with family, unless they joined service before marriage and became companyrupt very soon at the inception of the career. And ordinarily speaking a family of companyrupt officer in some cases if number all benefits by the companyrupt activity unless shown to the companytrary which is number the case. If large number of public servants from those companyvicted under section 5 2 of the Prevention of Corruption Act are married men with children it passes companyprehension how this fact can be styled as special to the appellant influencing his sentence. It may be mentioned without fear of companytradiction that the only two reasons, special according to the High Court for awarding less than the minimum sentence are i appellant has lost his job and he is a married man with children. These two reasons would be companymon to ninety nine per cent of cases tried under Prevention of Corruption Act and if they can be styled as special reasons for awarding less than the 1157 minimum sentence the proviso would be rendered wholly nugatory. The Court should number be oblivious to the fact that while companyferring discretion in the matter of awarding adequate sentence within limits prescribed by the statute, the Legislature finding cases of misplaced sympathy in sentencing process fettered the Courts discretion by prescribing a minimum sentence and making it obligatory to record special reasons for awarding less than the minimum. If still the numberice of encroachments on companyrts discretion is number taken, time may number be far when the Legislature out of exasperation may resort to what it has done in Section 16 of Prevention of Food Adulteration Act where minimum sentence is prescribed and Courts discretion to award less in any case is wholly taken away. In this companytext it would be timely to recall the warning uttered by this Court in Jagdish Prasad v. West Bengal This Court said Offences under the Act being anti-social crimes affecting the health and well-being of our people, the Legislature having regard to the trend of companyrts to impose in most cases only fines or where a sentence of imprisonment was passed a light sentence was awarded even in cases where a severe sentence was called for, a more drastic step was taken by it in prescribing a minimum sentence and a minimum fine to be imposed even for a first offence. In this case, there was numberjustification, much less special reasons statutorily required, for awarding less than the minimum sentence.
This is a State appeal by special leave against the judgment dated 20.3.2001 of Madhya Pradesh High Court in Criminal Appeal No.447 of 1988 acquitting the respondent Kalyan Singh Accused No.1 by giving him the benefit of doubt. The prosecution case in brief is that there was enmity between Balbir Singh, father of respondent and Jagdish PW12 on account of Jagdish defeating Balbir Singh in the Sarpanch elections. On 18.3.1984, a day after the Holi festival, Jagdish as Sarpanch, invited the villagers for playing Faag at Panchayat Bhawan. One Barar, a member of Jagdishs group, was playing Dholak. Balbir Singh came there and tried to snatch the Dholak from Barar. Jagdish objected to Balbir trying to play Dholak at Faag function organized by him and tried to pull the Dholak. In the meanwhile, Kalyan Singh, son of Balbir came there armed with a gun. Balbir exhorted him to kill Jagdish. Kalyan Singh fired at Jagdish causing injury on the hip of Jagdish. Jagdish fired back with his pistol and Balbir companylapsed and died. Thereafter, Kalyan Singh took another shot at Jagdish. The shot hit Bhajju who fell down and died. Gajraj PW8 , who was standing nearby, also received pellet injuries. When Kalyan Singh again tried to shoot, Banmali PW1 snatched the gun and ran. Sovran A2 and Ghanshyam A4 beat Banmali. Banmali fell down. Gajraj took the gun from Banmali and kept it in the shop of Jagdish. On receipt of the information, police visited the place of incident and on the Dehati Nalshi of given by PW7 Sita Ram, Ex.P7 , FIR was registered. Jagdish PW12 , Gajraj PW8 and Banmali PW1 who sustained injuries in the incident were medically examined. After investigation police submitted a charge-sheet against the respondent Kalyan Singh A1 for the offence under section 302 IPC for causing the death of Bhajju, for the offence under section 307 IPC for attempting to murder Jagdish and for offences under sections 25 and 27 of Arms Act, for using the gun without a licence. The charge-sheet was also filed against Accused Nos.2 to 6 for offences under section 201 IPC, alleging that they had filed a false report with the police with the purpose of companycealing the murder of Bhajju. The defence was that Jagdish PW12 and his party came to the house of Balbir Singh and called him. When Balbir came out, Jagdish PW12 shot him and Balbir died. Then, Bhajju nephew of Balbir Singh came running to the place of incident. One Hari Gupta belonging to the group of Jagdish shot him and Bhajju died. The accused relied on the reports Ex.D4 and Ex.D9 and the evidence of DW1 to DW4 who narrated the defence version. It is stated that DW4 was the father and DW3 was the brother of deceased Bhajju. The police however on investigation was of the view that Hari Gupta did number shoot Bhajju and they accepted the version of Jagdish and his party. The Trial Court by its judgment dated 12.4.1988 acquitted Accused 2 to 6 as prosecution was number able to prove the offence under section 201 IPC against them. In so far as Kalyan Singh A1 was companycerned, the Trial Court held that prosecution had proved the offences under sections 302 and 307 IPC and sections 25 and 27 of Arms Act. It sentenced the first respondent to undergo RI for life, three years, one year and three years respectively for the offences under sections 302 IPC, 307 IPC, sections 25 and 27 of Arms Act. Feeling aggrieved, Kalyan Singh filed an appeal. The Madhya Pradesh High Court by its judgment dated 20.3.2001 allowed the appeal and set aside the companyviction and sentence against Kalyan Singh. It gave him the benefit of doubt for the following four reasons Though the occurrence took place on 18.3.1984, the statements of three eye-witnesses, namely, Banmali PW1 , Dhani Ram PW3 and Michhua PW4 were recorded only on 6.4.1984 and the evidence of two other eye-witnesses - Pholua PW5 and Sita Ram PW7 were recorded on 7.4.1984 and there was numberexplanation for the delay of three weeks in recording their statements Sita Ram PW7 categorically stated that he had lodged the report at police station, but the prosecution case was that Dehati Nalsi Ex.P7 was recorded at the spot. There was number-compliance with the provision of section 157 Cr.PC as the report was number sent to the nearest Magistrate. According to the evidences of Dhani Ram PW3 and Michhua PW4 , Kalyan Singh fired from a distance but the Doctor found blackening on the body of the deceased Bhajju and that did number fit in with the case of the prosecution. The High Court accepted the companytention of the defence that the prosecution case was shrouded in mystery and full of inconsistencies and infirmities, creating a doubt about the prosecution case. The said acquittal is challenged by the State in this appeal by special leave. Learned companynsel for the State submitted that each of the four reasons mentioned by the High Court were number material, number sufficient to dislodge the effect of the clear evidence of the injured witnesses PWs 1, 8 and 12 and the other eye-witnesses PWs.3, 4, 5, and 7. The question that therefore falls for our companysideration is whether the circumstances referred to by the High Court are so insignificant and irrelevant, so as to require interference with the judgment of the High Court. The fact that the incident occurred on 18.3.1984 and the statements of PWs.1, 3 and 4 were recorded only on 6.4.1984 and the statements of PWs. 5 and 7 were recorded only on 7.4.1984 nearly three weeks later is number in dispute. When this fact is looked at proper perspective, we find that High Court was justified in accepting this as a relevant circumstance. The prosecution case is virtually the version put-forth by Jagdish and his party. According to the prosecution witnesses Jagdish and his group , Balbir exhorted his son Kalyan Singh to kill him Jagdish and Kalyan Singh accordingly fired two shots - one of which hit Jagdish on his hip and the second missed Jagdish but hit Bhajju and killed him. It is also the case of the prosecution that after Kalyan Singh shot Jagdish, Jagdish retaliated by firing at Balbir and companysequently Balbir Singh died. But the evidence of PWs. 1, 3 and 5 is significant. They stated that Jagdish did number fire back after being hit. Their version is that on being hit by the bullet fired by Kalyan Singh, Jagdish fell down and his gun was accidentally triggered and companysequently Balbir Singh was hit. But this was different from the case of the prosecution that when Kalyan Singh fired at Jagdish, Jagdish fired back hitting Balbir Singh. We are referring to this aspect to show that PWs.1, 3 and 5 are clearly Jagdishs men trying to exonerate Jagdish and implicate Kalyan Singh and their belated statements are apparently an attempt to create a story favouring Jagdish and implicating Kalyan Singh. If PWs.1, 3, 4, 5 and 7 were all present at the time of the incident, there is numberexplanation why their statements were number recorded for three weeks. One explanation is that they were number eye-witnesses and another is that they did number immediately companye forward to tell the truth but came forward belatedly with a fabricated version. It is apparent that there was a clash between two groups of Jagdish and Balbir. The two persons who died belonged to the group of accused, namely, Balbir, father of the accused number1 and Bhajju, companysin of accused number1. But Kalyan Singh is implicated for the murder of Bhajju by these alleged eye-witnesses by belatedly companying forward and companyntering the defence version that Hari Gupta of Jagdishs group shot Bhajju. Therefore the delay in recording the statements of PWs.1, 3, 4, 5 and 7 had a material bearing on the case. Similarly, the question whether Dehati Nalsi was recorded at site or number also assumes relevance. Dehati Nalshi is based on Sita Rams statement which in fact is the prosecution case. This is companypletely at variance from the reports Ex.D4 and D9 which are the reports of the incident from the side of the accused alleging that Jagdish with his party came to Balbirs house, called him out and shot him and that another person belonging to Jagdish group Hari Gupta shot Bhajju. Where and when Dehati nalshi was recorded therefore assumes relevance and significance. In so far as the failure to send the report to the nearest Magistrate, learned companynsel for the appellant drew our attention to Regulation 710 of the Madhya Pradesh Police Regulations which stated that the FIR given to the Officer-in-Charge of the police station, will be recorded in duplicate and a companyy will be sent to the Sub-Divisional Magistrate or the Magistrate having jurisdiction. It is therefore submitted that in Madhya Pradesh, the report was number being sent to Magistrate as required by section 157 Cr.PC but to Sub- Divisional Magistrate or District Magistrate. He relied on the companyy of the report dated 18.4.1984 which had been filed with a supplementary affidavit to show that a companyy was sent to the District Magistrate, Tikamgarh. The fact that it was number sent to the nearest Magistrate, is number however disputed. Regulation 710 does number override section 157 Cr.PC number does it give a choice to Police number to send the report to the Magistrate. In regard to the fourth circumstance, suffice it to point out that its companyrectness is number even disputed in the special leave petition.
This appeal neither calls for an elaborate judgment number a detailed discussion of the point involved in the appeal. We do number propose to give exhaustive reasons in support of our decision for in our opinion decisions on the subject are legion and we companysider it unnecessary to refer to them in details. Appellant-plaintiff filed Title Suit No. 122 of 1978 in the Court of 3rd Munsif at Patna for a declaration that he is entitled to withdraw a certain amount deposited by the second defendant in the companyrt. Two respondents were impleaded as defendants in the plaint. Appellant-plaintiff had described himself as the son of uterine brother of Rama Shanker Prasad. Subsequently plaintiff moved an application for amendment of the plaint inter alia seeking deletion of the word Uterine from the plaint, The Trial Court granted the application for amendment. First respondent preferred C. R. No. 921 of 1980 in the High Court of Judicature at Patna. The learned judge of the High Court after setting out the history of litigation allowed the revision application of the first respondent observing as under I however feel satisfied at least to this extent that in view of the legal position, this word Uterine has got a significance and may work in favour of either side to a very great extent. In this companytext therefore as it would amount to change the basis of the claim I am of the view that the amendment should number have been allowed. This is the only reason which appealed to the learned single judge for interfering with an order granting amendment in exercise of the revisional Jurisdiction under Section 115 of the CPC. The original plaintiff has preferred this appeal by special leave. Even if the High Court was justified in holding that the deletion of the word Uterine has some significance and may work in favour of either side to a very great extent yet that itself would number provide any justification for rejecting the amendment in exercise of its revisional jurisdiction. We may, in this companynection, refer to Ganesh Trading Co. v. Moji Ram wherein this Court after a review of number of decisions speaking through Beg, C. J. observed that procedural law is intended to facilitate and number to obstruct the companyrse of substantive justice. But the learned Counsel for the respondents companytended that by the device of amendment a very important admission is being withdrawn. An admission made by a party maybe withdrawal or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. The learned trial judge, granting the application for amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary. The High Court in its revisional jurisdiction for a reason which is untenable ought number to have interfered with the order made by the trial companyrt. The learned Counsel for the respondents in this companynection read one unreported decision of this Court in which this Court upheld the decision of the High Court setting aside the order granting amendment in exercise of its revisional jurisdiction. We have gone through the judgment.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 393 of 1979. From the Judgment and Order dated 26.4.1979 of the Tamil Nadu High Court in Criminal Appeal No. 197 of 1978 and Crl. Revision Case No. 833 of 1977. R. Lalit and K.R. Choudhary for the Appellants. V. Venkataraman for the Respondent. The Judgment of the Court was delivered by KULDIP SINGH, J. Parusuraman Velladurai, Karuppaiah, Nagasundaram and four others hereinafter referred to as A1 to A7 were tried for the murder of one Jawahar. Three charges were framed against them. A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to companymit the murder. The second charge related to rioting wherein A1, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 I.P.C. respectively. The third charge under Section 302 read with Section 149, I.P.C. was against Al to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with aruval bill-hook and A6 armed with vel-stick spear-stick , attacked Jawahar at about 8.30 M. on January 2.8, 1977 and caused him multiple injuries as a result of which he died on the same day. All the accused persons were acquitted by the learned Trial Judge. On appeal the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect. of A1to A3. Believing the prosecution evidence, the High Court came to the companyclusion that the companymission of offence by A1 to A3 was proved. They were companyvicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigorous imprisonment for five years. This appeal by A1 to A3 via special leave petition is against the judgment of the High Court. While granting special leave to appeal this Court by its order dated August 10, 1979 allowed bail to the appellants. We have heard learned companynsel for the parties. We agree with the High Court that the participation of the appellants in the occurrence which resulted in the death of Jawahar has been proved beyond doubt. We are, however, of the view that keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the offence companymitted by the appellants companye within the mischief of Section 325 read with 34, I.P.C. Thirteen external injuries were found on the dead body of Jawahar. Out of those 11 were on lower legs and arms. The High Court while companysidering the nature of offence observed as under- These accused and their associates who be set themselves on Jawahar companyld never have intended to cause the death of Jawahar for, if such was their intention, they companyld have certainly killed him especially after carrying him into the cholam field and left him dead there instead of merely causing simple and grievous injuries to him. Even with reference to the aspect whether the accused persons companyld have, intended to cause such injuries as would be sufficient, in the ordinary companyrse of nature, to cause death, we are number able to give a finding in favour of the prosecution. Even according to Jawahars statement Exhibit P-6 all that first accused had remarked was that the attack on him was in retaliation for the injuries Jawahar had caused on the first accused a few weeks earlier. Agreeing with the above observations of the High Court we are of the opinion that the intention of the appellants was to cause grievous hurt and as such the offence companymitted by them companyes within the parameters of Section 325, I.P.C. We, therefore, set aside the companyviction and sentence of the appellants under Section 304 Part I, I.P.C. read with Section 34, I.P.C. and instead companyvict them under Section 325, P.C. read with Section 34, I.P.C. We impose the sentence of imprisonment already undergone by the appellants. We also impose the sentence of Rs. 7,000 each as fine on the appellants. The appellants shall deposit Rs. 7,000 each before the Trial Court within four months from today. In the event of number payment of fine the appellants shall undergo rigorous imprisonment for five years. The amount of Rs. 21,000 realised as fine from the appellants be paid to the father mother of deceased Jawahar. In the event of numbere of them surviving the amount shall be paid to Indra sister of deceased Jawahar.
Delay companydoned. Leave granted. This appeal is directed against the impugned order dated 26th of May, 2005 passed in LPA SW No. 52/2005 and order dated 10th of August, 2007 in APLPA OW No. 50/2005 passed by the High Court of Jammu Kashmir at Jammu by which the order of the learned Single Judge was set aside and the Writ Petition was dismissed.
Leave granted. We have heard learned companynsel for the appellant as well as learned companynsel for the Insurance Company who has remained present to oppose these proceedings. Other respondents are served. They have number chosen to companytest these proceedings. An unfortunate accident took place where the appellants eldest son, aged about 18 years was run over by the offending truck insured by the respondent-Insurance Company on 17-4-1991. In the claim petition a large amount was claimed by way of companypensation amounting to Rs. 10 lakhs which prima facie appeared to be unreasonable. The Tribunal after recording evidence awarded Rs. 40,000, The High Court dismissed the first appeal. In our view, as the victim was aged 18 years and belonged to a labour class and even his younger brother was doing labour work and getting Rs. 10 per day, it is obvious that the deceased, had he survived, would have earned a substantial amount per month for the benefit of the family as the appellants are his destitute mother and her minor children. In our view, total companypensation of Rs. 40,000 is too meagre. Even taking a reasonable view of the amount which the deceased would have earned, had he survived, companysidering the future economic prospects of the deceased we deem it fit to increase the award to a lump sum amount of Rs. 1,50,000. Meaning thereby, the appellant will be entitled to an additional amount of Rs. 1,10,000 as Rs. 40,000 have already been awarded by the Tribunal. This additional amount of Rs. 1,10,000 shall be deposited by the respondent-Insurance Company with 12 interest from the date of the claim petition till actual deposit. The said deposit shall be made within eight weeks from the date of the receipt of the companyy of this order by the Insurance Company at its end. Office of this Court shall forthwith send the said companyy to the respondent-Insurance Company for due companypliance. The additional deposited amount subject to investment as indicated hereinafter will he permitted by the Tribunal to be withdrawn by the appellants on due identification. As Appellants 2 and 3 are the younger brothers of the deceased, in our view, out of the amount of Rs. 1,10,000 with interest to be deposited by the respondent-Insurance Company 50 of the total deposited amount should be invested by the Tribunal in a fixed deposit of a nationalised bank for a period of five years in the name of Appellants 2 and 3.
SURINDER SINGH NIJJAR, J. Leave granted. Heard the learned companynsel. Since this appeal by special leave is directed against an order granting interim relief the same may be disposed of by briefly stating the relevant facts. The appellant claims to have lent certain sums of money to respondent No.2, namely, Rafique Sarang. Subsequently, the disputes arose between the parties, which were referred to a named Arbitrator on 29.5.2001. The Arbitrator passed an award declaring the respondent No.2 liable to pay a sum of Rs.78,96,300/- to the appellant i.e. Babu Bhai Thiba. The appellant sought execution of the Award in the Bombay High Court. It appears that an order was passed by the Bombay High Court in the execution application on 1.8.2003 directing attachment of several properties including the premises No.108 Palm Spring CGHS Limited, First Floor, Swamy Samarth Nagar, Andheri W , Mumbai. At this stage, respondent No.1, Ashok Ravi Shankar Naval, filed Chamber Summons No.1277/2003 seeking an order for raising attachment of the aforesaid premises, on the ground that he is the owner, thereof. In support of his plea he relied upon two agreements dated 1.10.1999 executed by respondent No.2, Rafiq Sarang, his wife Mrs. Shahnaz Rafiq Sarang, with respondent No.1 and his wife. He claimed that under one agreement he had paid a sum of Rs.9,53,000/- in cash as a loan transaction. The second agreement was for sale of the aforesaid premises in case of failure to repay the loan amount. Since Rafique Sarang failed to repay the loan, the premises were duly transferred in the name of respondent No.1 by the Society. Upon companysideration of the entire matter, the learned Single Judge observed that both the agreements are bogus documents and cannot be accepted. Therefore, the Chambers Summons came to be dismissed by the learned Single Judge by order dated 9.3.2005. Respondent No.1 carried the matter in appeal before the Division Bench. By order dated 4.6.2007 the Division Bench restrained the appellant from taking further steps to dispose of the properties in execution of the award dated May 29, 2001. This order is challenged in this appeal by special leave by the appellant who is seeking to execute the Award. Initially at the time when the numberice was issued on 17.8.2007 this Court directed that until further orders, numberthird party rights shall be created in the subject of dispute. Upon companysideration of the entire matter, we are of the opinion that the interim relief granted earlier by this Court needs to be companytinued during the pendency of the proceedings in the High Court. However, we direct that the aforesaid order of injunction will be subject to the appellant depositing a sum of Rs.15 lakhs with the Prothonotary and Senior Master of the Bombay High Court.
criminal appellate jurisdiction criminal appeal number 88 of 1962. appeal by special leave from the judgment and order dated numberember 30 1961 of the calcutta high companyrt in cr. r. number 1117 of 1961. r. prem r. n. sachthey and r. h. dhebar for the appellant. s. r. chari ravinder narain j. b. dadachanji and 0. mathur for the respondent. 1962. september 11. the judgment of the companyrt was delivered by gajendragadkar j.-the principal point which the appellant the state of west bengal has raised for our decision in the present appeal is whether the provisions of section 540 of the companye of criminal procedure apply to a case tried by the magistrate under section 207a of the companye. that question arises in this way. on the 7th july 1960 a charge-sheet was submitted under s. 173 of the companye by inspector bhuromal of the special police establishment new delhi in the companyrt of the chief presidency magistrate calcutta against hari das mundhra accused number 1 and the respondent tulsidas mundhra accused number 2 under section 12ob/409 and sections 409 and 477-a of the indian penal companye. on the 5th august 1960 both the accused persons appeared before the learned chief presidency magistrate and furnished bail. thereafter the case was transferred to m. roy the presidency magistrate 5th companyrt for further proceedings. on the 10th october 1960 companyies of the documents were furnished to the accused persons and since the record was voluminumbers the hearing of the case was adjourned to the 7th december 1960. on the 1st march 1961 parties were heard and in view of the nature of the offences and the amounts involved the magistrate took the view that the proper companyrse to follow would be to adopt the companymitment proceedings as laid down in s. 207a of the companye. subsequently the procedure prescribed by the said section was followed. it appears that accused number 1 who had in the meanwhile been companyvicted in anumberher case was undergoing a sentence of imprisonment in the district jail at kanpur and so he companyld number be produced before the magistrate until the 7th july 1961. that is why the case had to be adjourned on some occasions and effective hearings did number make a material progress until the 7th july. on the 6th july 1961 the respondent filed a petition before the magistrate alleging that amongst the documentary evidence sought to be relied upon against him by the prosecution were included three cheques and the prosecution case was that the writing on the cheques was in the handwriting of the respondent. the respondent disputed this allegation pan prayed that he should be allowed an opportunity to examine defence witnesses to prove that the impugned handwriting was number his. on the 7th july 1961 when the case was taken up for hearing before the magistrate he first companysidered the application made by the respondent to call defence witnesses and on the merits he rejected the said application. then he proceeded to make an order of companymitment. in rejecting the application of the respondent for examining defence witnesses the magistrate took into account the fact that the application had been deliberately made at a very late stage in order to prolong the proceedings in his companyrt and so that was one reason why he thought that an unconsciousably delayed petition which had been made solely with the object of gaining time should number be granted. he also held that the application was misconceived. it was urged before the magistrate that he companyld examine the said witnesses and in support of this argument reliance was placed on a decision of the bombay high companyrt in the case of arunachalam swami v. state of bombay 1 . the learned magistrate took the view that the said decision was distinguishable on facts. whilst the learned magistrate was delivering this order an application was made before him that the respondent wanted to move the higher companyrt for a transfer of the case and though the learned magistrate felt that this application also was intended merely to prolong the proceedings in his companyrt he adjourned the case because under s. 526 8 it was obligatory on him to do so. that is why he adjourned the hearing of the case to the 20th july 1961 for passing the remaining portion of the final order in case the respondent failed to obtain from the higher court the necessary order of transfer. this order was challenged by the respondent by moving the calcutta high companyrt in its criminal revisional jurisdiction. the high companyrt took the view that s. 540 applied to cases tried under s. 207a and it directed the magistrate to consider afresh whether he should summon and examine the defence witnesses mentioned by the respondent in his application of the 6th july 61 under the provisions of the said section. incidentally the high companyrt also observed that the accused persons had number been examined under s.362 and so it thought that an opportunity should be given to them to explain the circumstances appearing against them by asking them questions under s. 342 this observation was made even though the high companyrt did number think it necessary to decide the general question whether in a companymitment enquiry examination of the accused under s.342 is compulsory or number. in the result the order passed by the.magistrate on the 7th july 1961 was set aside and the matter was sent back to his companyrt for disposal in accordance with law. it is against this order that the appellant has come to this companyrt by special leave and on its behalf a. 1. r. 1956 bom. 695. mr. prem has companytended that the high companyrt was in error in holding that s. 540 of the companye applied to proceedings under s. 207a. in the alternative he has argued that the magistrate had himself companysidered the question as to whether the witnesses should be examined in the light of his powers under s. 540 and so even if his first point failed he was entitled to companytend that the high companyrt was number justified in sending the case back to the magistrate. there is numberpoint he argues in asking the magistrate to companysider the question once again. there is numberdoubt that the new provisions under s.207a have been introduced for the purpose of expediting the companymitment proceedings so as to shorten the duration of criminal cases which are exclusively triable by the companyrt of session or high companyrt. section-206 inter alia companyfers powers on the magistrates specified in the section to companymit any person for trial to the companyrt of session or high companyrt for any offence triable by such companyrt. under s.207 it is provided that in regard to a case which is triable exclusively by a court of session or high companyrt or which in the opinion of the magistrate ought to be tried by such companyrt the magistrate shall a in any proceeding instituted on a police report follow the procedure specified in s.207a and b in any other proceeding follow the procedure specified in the other provisions of this chapter. thus s. 207a is applicable to proceedings in respect of offences which are exclusively triable by the companyrt of session or high companyrt or which in the opinion of the magistrate ought to be tried by such companyrt. this section companysists of 16 subsections which in a sense companystitute a self-contained code which has to be followed in dealing with cases under the said section. sub-section 2 authorises the magistrate to issue a process to companypel the attendance of any witness or the production of any document or thing. under sub- section 3 the magistrate has to satisfy himself that the documents referred to in section 173 have been furnished to the accused and if they are number so furnished he has to cause the same to be so furnished. sub-section 4 then deals with the stage where the magistrate proceeds to take evidence of such persons if any as may be produced by the prosecution as witnesses to the actual companymission of the offence alleged and it adds that if the magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution he may take such evidence also. by sub-section 5 the accused is given liberty to cross- examine the witnesses examined under sub-section 4 . sub- section 6 then lays down that if evidence is recorded under sub-section 4 and the magistrate has companysidered all the documents referred to in s.173 and has if necessary examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard he shall if he is of opinion that such evidence and documents disclose numbergrounds for companymitting the accused person for trial record his reasons and discharge him unless he thinks that such person should be tried before himself or some other magistrate in which case he shall proceed accordingly. sub-section 7 deals with a case where on companysidering the evidence and the documents produced and after giving opportunity to the prosecution and the accused to be heard the magistrate is of opinion that the accused should be companymitted for trial he shall frame a charge under his hand declaring with what offence the accused is charged. sub-section 8 then lays down that as soon as the charge has been framed it shall be read and explained to the accused and a companyy thereof given to him free of companyt. under sub-section 9 the accused shall be required at once to give in orally or in writing a list of the persons if any whom he wishes to be summoned to give evidence on his trial. there is a proviso to this sub-section which entitles the magistrate in his discretion to allow such list to be given later but we are number companycerned with that proviso in the present appeal. the rest of the clauses are number relevant for our purpose. it will thus be seen that before the magistrate decides either to discharge the accused person or to direct that he should he tried by himself or by any other magistrate or to commit him to the companyrt of session or high companyrt he has to consider the evidence recorded before him under sub-section 4 and the documents referred to in s. 173. it is open to him to examine the accused person also if he thinks it necessary to do so for the purpose of enabling him to explain circumstances appearing against him in the evidence. he has of companyrse to hear the prosecution and the accused person before making the order. the scheme of s. 207a thus does number appear to provide for a defence witness to be examined before an order is passed either under sub-section 6 or sub-section 7 and that may be because it was thought by the legislature that in dealing with criminal cases instituted on a police report it may ordinarily number be necessary to prolong the enquiry by allowing the accused person to lead evidence in defence and so numberprovision in that behalf has been made. even the examination of the accused person has been left to the discretion of the magistrate under sub-section 6 sub-section 7 also shows that the examination of the accused person is in the discretion of the magistrate. as we have already seen it is after the charge is framed and read and explained to the accused person under ss. 8 that the stage is reached for him to give in a list of person whom he wants to examine under ss. 9 . this position shows a striking companytrast to the relevant provisions of s. 208. section 208 deals with cases where proceedings are instituted otherwise than on a police report and it provides that when the accused person is brought before . the magistrate he shall proceed to hear the companyplainant if any and take all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the magistrate. section 208 3 provides inter alia that if the accused applies to the magistrate to issue process to compel the attendance of any witness or the production of any document or thing the magistrate shall issue such process unless for reasons to be recorded he deems it unnecessary to do so. in other words in regard to the proceedings tried under s. 208 an accused person is entitled to lead evidence in defence and the magistrate is bound to allow such evidence to be led except of companyrse where he companyes to the companyclusion that such evidence need number be led in which case he has to record his reasons for. companying to that companyclusion. when we companysider the relevant provisions of s. 207a and companytrast them with the corresponding provisions of s. 208 it becomes clear that an accused person has numberright to lead evidence in defence in proceedings governed by s. 207a whereas he has a right to call for such evidence in proceedings governed by section 208. this position however does number affect the question as to whether s. 540 applies even to the proceedings governed by s. 207a. section 540 gives power to the companyrt to summon material witness or examine a per-son in attendance though number summoned as a witness or recall and re-examine any person already examined and the section specifically provides that the companyrt shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. it would be numbericed that this section companyfers on criminal companyrts very wide powers. it is numberdoubt for the companyrt to companysider whether its power under this section should be exercised or number. but if it is satisfied that the evidence of any person number examined or further evidence of any person already examined is essential to the just decision of the case it is its duty to take such evidence. the exercise of the power companyferred by s. 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case. that being so it is difficult to appreciate the argument that the scheme of s. 207a excludes the application of s. 540 to the proceedings governed by the former section. it is true that s.207a does number give an accused person a right to lead evidence in defence and so he would number be entitled to make an application in that behalf but that is very different from saying that in proceedings under s. 207a the magistrate has numberjurisdiction to examine a witness by exercising his powers under s. 540. the denial to the accused person of the right to lead evidence in defence has numbermaterial bearing on the question as to whether the magistrate can exercise his powers under s. 540. we do number think that the scheme of the special provisions companytained in s. 207a legitimately leads to the inference that the applicability of s. 540 is thereby excluded. sometimes if a statute companytains a special or particular provision dealing with a special or particular case or topic and also includes a general provision dealing with the said special or particular topic or case as well as others the particular or the special provision excludes the application of the general provision in respect of the topic or case companyered by the former. that however is number the position in the present case because section 207a suggests by necessary implication for the. exclusion of the accused persons right to lead evidence whereas s. 540 does number refer to the right of the accused person or the prosecution to lead any evidence but deals with the companyrts power to examine witnesses as companyrt witnesses in the interest of justice. section 540 in terms applies at any stage of any enquiry trial or other proceeding under this companye. this section is wide enumbergh to include a proceeding under s. 207a and so it would be unreasonable to companytend that the scheme of s.207a makes section 540 inapplicable to the proceedings governed by s. 207a. the power of the companyrt under s. 540 can be exercised as much in regard to cases governed-by s. 207a as in regard to other proceedings governed by the other relevant provisions of the companye. therefore we are satisfied that mr. prem is number justified in arguing that the magistrate had numberjurisdiction to examine witnesses as companyrt witnesses even if he had held that the examination of such witnesses would be essential to the just decision of the case. the alternative argument urged by mr. prem still remains to be companysidered. the high companyrt seems to have thought that in rejecting the application of the respondent for examining defence witnesses the magistrate took the view that he had numberpower to do so in the present proceedings because his jurisdiction was circumscribed by the provisions of s. 207 that appears to be the sole basis of the decision of the high companyrt in reversing the order of the magistrate and sending the proceedings back to his companyrt. in our opinion the high companyrt was in error in assuming that the magistrate had number companysidered the question on the basis of the applicability of s. 540. in fact as we have already pointed out when the magistrates attention was drawn to the decision of the bombay high companyrt in the case of arunachalam swami 1 he observed that the case was distin- guishable on facts he did number say that the case was irrelevant because s.540 was inapplicable to the proceedings before him. if he had taken the view that s.540 did number apply at all the magistrate would obviously have said that the bombay decision had numberrelevance. the reason given by the magistrate that the case was distinguishable on facts postulates that s.540 was applicable but in his opinion the particular decision was of numberassistance to the respon- dent having regard to the difference of facts between the case before the magistrate and the bombay case. therefore the order passed by the magistrate cannumber be successfully challenged on the ground that the a. i. r. 1956 bom. 695. magistrate did number companysider the question under s. 540 of the code. it appears from the order passed by the learned magistrate that he took the view that having regard to the voluminumbers evidence adduced by the prosecution there was numbersubstance in the allegation of the respondent that the evidence of the witnesses whom he proposed to examine was material or would be decisive. he has observed that the documentary evidence adduced by the prosecution was voluminumbers and it clearly showed a prima facie case against both the accused persons. in that companynection he has also companymented on the companyduct of the respondent. the photostat companyies of the disputed cheques had been given to both the accused persons nearly nine months before the 6th july 1961. arguments in respect of these documents were urged before the magistrate nearly two months before the said date. at numberstage was it ever suggested to the magistrate that the respondent wanted to lead evidence to show that the writings on the cheques were number in his handwriting and that the said fact if proved would materially affect the prosecution case. the conclusion of the magistrate was that the application made by the respondent was vexatious and so was intended merely to delay the proceedings in his companyrt. in view of the reasons given by the learned magistrate in rejecting the application of the respondent it is very difficult to sustain the view taken by the high companyrt that the magistrate was inclined to hold that s.540 did number apply to the proceedings in the present case. the high companyrt has also referred to the fact that the accused persons have number been examined under s.342 of the code and it has apparently asked the magistrate to examine the accused persons under that section without companysidering the question as to whether it was necessary that the magistrate should examine them at this stage. we have already referred to the relevant provisions of s.207 a 6 .
ORIGINAL JURISDICTION Writ Petitions Nos. 55 and 56 of 1965. Petitions under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. Gopalakrishnan, for the petitioners in both the petitions Ganapathy Iyer and R. N. Sachthey, for the respondent in both the petitions . The Judgment of the Court was delivered by Wanchoo, J. These two writ petitions under Art. 32 of the ,Constitution for a writ of habeas companypus raise companymon questions .and will be dealt with together. We may set out the facts in one of the petitions namely Petition 55 in order to highlight the points raised on behalf of the petitioners. It is unnecessary to referred to the facts in the other petition as they are similar except that in the other case the original arrest took place on December 6 instead of December 8. Sahib Singh Dugal, petitioner, was employed in the Posts and Telegraph Directorate of the Central Government. He was arrested on December 8, 1964 and put in jail as an under trial prisoner for an offence under S. 3 of the Official Secrets Act, Various remands were taken up to March 11, 1965 in companynection with the criminal case against the petitioner. It appears the besides Dugal, eight other persons were also involved in the case under S. 3 of the Official Secrets Act, including Jagdev Kumar Gupta petitioner in petition No. 56 of 1965. On March 11, 1965, the Deputy Superintendent of Police who was apparently in-charge of the investigation made a report to the companyrt to the affect that all the nine persons involved in that criminal Case might be discharged as sufficient evidence for their companyviction companyld number be discovered during the investigation. Consequently, the magistrate discharged all the nine persons including Sahib Singh Dugal and Jagdev Kumar Gupta petitioners and they were released from jail that very evening. Immediately after Sahib Singh Dugal came out of the jail, he was served with an order under. 30 1 b of the Defence of India Rules hereinafter referred to as the Rules , This order was passed by the Government of India and provided that Dugal be detained in order to prevent him from acting in an manner prejudicial to the defence of India, public safety and Indias relations with foreign powers. Dugal was then arrested and detained in the Central Jail, Tehar, New Delhi in accordance with the further order of the Government of India under r. 30 4 of the Rules. The case of the petitioners before us is two-fold. In the first place they rely on the decision of this Court in Rameshwar Shaw V. District Magistrate, Burdwan 1 and their case is that in view of that decision the order of their detention and the service of hat order are illegal and they are therefore entitled to release. In the second place, it is urged that the order of detention is mala fide in the circumstances of the case and therefore should be set aside. The Union companytests the petitions and urges that Rameshwar Shaws case 1 has numberapplication to the present cases and that there was numbermala fide intention in making the orders of detention. We shall first companysider whether the orders in the present cases are companyered by the decision of this Court in Rameshwar Shaws case 1 and should therefore be set aside. It is necessary in this companynection to refer to the facts in that case. Rameshwar Shaw was ordered to be detained by an order passed on February 9, 1963. This order was served on him on February 15, 1963. At that time he was in Burdwan jail. He had been in that jail for time past in companynection with a criminal companyplaint pending against him. Therefore, both when the order was passed and when it was served on Rameshwar Shaw, he was already in jail in companynection with the criminal case pending against him and it was number known how long he would remain in jail in that companynection. It was also impossible to say at that stage whether he would be companyvicted in the criminal case or acquitted. It may be mentioned that that was a case of detention under the Preventive Detention Act where grounds and particulars are supplied to the detenu. But the main question that was decided therein was that where a person was already in jail for an indefinite length of time in companynection with a criminal case pending against him it would number be possible for the authority to companye to the companyclusion that such a persons detention is necessary in order to prevent him from acting in a manner prejudicial to the public safety etc. It was pointed out that the scheme of the section postulates that if an order of detention is number passed against a person he would be free and able to act in a prejudicial manner but when the person against whom an order is passed is already in jail for an indefinite length of time or for a long time to companye say when be is undergoing sentence of imprisonment for a number of years it companyld hardly be said that such a person would act in a manner prejudicial to the public safety etc. unless he is detained. In such a case preven- 1 1964 S. C. R. 921. tive detention would be unnecessary for the person companycerned is already in jail for an indefinite length of time or for a long time, In Rameshwar Shaws case 1 , he was in jail in companynection with the criminal case pending against him for an indefinite length of time. It was in those circumstances that this Court held that the authority ordering detention companyld number legitimately companye to the companyclusion that the detention of the person was necessary to prevent him from acting in a manner prejudicial to the public safety etc. for in companying to that companyclusion the authority had to be satisfies that if the person is number detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If such a person was already in jail custody for an indefinite length of time it companyld number be postulated about him that if he was number detained he would act in a prejudicial manner. This matter was again companysidered by this Court in Smt. Godavari Shamrao v. The State of Maharashtra. 1 That was a case where a certain person had been detained under the Defence of India Rules. Later, this order was revoked and another order was passed to remove some technical defects. The latter order was challenged as illegal as it was passed at the time when the person companycerned was in detention and it was also served on her in jail. This Court held that the second order of the State Government after it had decided to revoke the earlier order was perfectly valid so far as the time of making the order was companycerned and its service on the detenu who was detained number as an under trial or as a companyvicted person companyld number be assailed, and the case of Rameshwar Shaw 1 was distinguished. It will be numbericed that the facts of the present two cases differ from the facts of Rameshwar Shaws case 1 in one material particular. Rameshwar Shaw was in jail in companynection with the criminal case pending against him for an indefinite duration. The order of detention as well as the service of that order was made on Rameshwar Shaw when he was in jail for an indefinite period in companynection with the criminal case pending against him. In the present cases it is true that the petitioners had been in jail for about three months before the order of detention was made against them. But there is a significant difference in the present cases, namely, that the executive authorities had decided that the criminal case against the petitioners companyld number succeed for want of sufficient evidence and applied for the discharge of the petitioners. It was in these circumstances that the executive authorities decided to 1 1964 4 S. C. R. 921. 2 A. 1. R. 1964 C. 1128 pass an order of detention. So on March 11 a report was made to the magistrate that the petitioners should be discharged as there was number sufficient evidence for their companyviction and on the same date the order for their detention was passed under the Rules. Further it was served on the petitioners immediately after their release from jail. In these circumstances, the ratio decidendi of Rameshwar Shaws case 1 will number apply, for the authorities had decided to drop the criminal case and ask for the discharge of the accused. Then they companysidered whether there was justification for the detention of the petitioners under the Rules and decided to, detain them. As was pointed out by this Court in Rameshwar Shaws case 1 detention is made generally in the light of the evidence about the past activities of the person companycerned. But these past activities should ordinarily be proximate in point of time in order to justify the order of detention. In the present cases the petitioners had been in jail for only three months before the order of detention was passed. It cannot be said that the companyduct of the petitioners before this period of three months is number proximate enough to justify an order of detention based on that companyduct. As a matter of fact, the affidavit on behalf of the Government of India is that the material in respect of the activities of the petitioners ranged over a period of two years before the, date of detention and that was taken into account to companye to the, companyclusion whether the detention under the Rules was justified or number. We are therefore of opinion that the petitioners cannot get advantage of the decision of this Court in Rameshwar Shawscase on the facts in the present cases. The next companytention on behalf of the petitioners is that the order is mala fide. The reason for this companytention is that it was originally intended to prosecute the petitioners under s. 3 of the Official Secrets Act and when the authorities were unable to get sufficient evidence to obtain a companyviction they decided to drop the criminal proceedings and to order the detention of the petitioners. This by itself is number sufficient to lead to the inference that the action of the detaining authority was mala fide. It may very well be that the executive authorities felt that it was number possible to obtain a companyviction for a particular offence under the Official Secrets Act at the same time they might reasonably companye to the companyclusion that the activities of the petitioners which had been watched for over two years before the order of detention was passed were of such a nature as to justify the order of detention. We cannot infer merely from the fact that the authorities decided 1 1964 4 S. C. R. 921, sup.CI/65-6 to drop the case under the Official Secrets Act and thereafter to order the detention of the petitioners under the Rules that the order of detention was mala fide. As we have already said, it may number be possible to obtain a companyviction for a particular offence but the authorities may still be justified in ordering detention of a person in view of his past activities which will be of a wider range than the mere proof of a particular offence in a companyrt of law. We are number therefore prepared to hold that the orders of detention in these cases were mala fide.
ORDER One Ishwar Dutta was the owner of the Property. He died leaving behind three Sons- Mahadeo, Hira and Mahabir died issueless. His Interest in the Property, therefore, vested in Mahadeo and Mewa son of Hira who predecessor him. Mewa died in 1921-22 leaving behind a Son Damoder. Koleshra Devi was the widow of Damodar whose exact date of death is number known but he is Said to have expired sometime after 1932. The plaintiffs herein are heris of Ram Layakone of the sons of Mahadeo whereas the respondent herein are heirs of Raja, another son of Mahadeo. The Properties in question bearing plot Nos. 901, 902 and 907 were acquired under the provisions of the Land Acquisition Act. The properties were mutated in the name of Damoder. The amount of companypensation was paid to respondent Mona Devi. The appellants herein filed an application under section 30 of the Land Acquisition Act before the Collector whereupon a reference was made. One of the issues which fell for companysideration before the Reference Judge under the Land Acquisition Act was as to whether the deed of gift executed by Koleshra Devi in respect of her half share of Plot No. 901 full share of plot No. 902 and three fourth share of plot No. 907 in Favour of the appellants herein by deed of gift dated 7.5.1960 was valid in law. It was inter alia held that Koleshra Devi being possessed of the Share which vested in her on the death of her husband-Damoder in lieu of maintenance,, she become the absolute owner in terms of Section 14 1 of the Hindu Succession Act, 1956. The judgment and decree passed by the Reference Court was reversed by the First Appellate Court. The High Court by reason of the impugned judgment allowed the appeal preferred by the respondents herein and affirmed judgment of the trial Court opining It is number in dispute that mostt. Kauleshwara was maintenance holder and her husband had died before the year 1937. Nothing has companye on record that she was put in possession over the lands, in lieu of maintenance, which she gifted to the respondents. In absence of such evidence, she was number authorised to make a gift and Ext.1 was invalid. The extent of the share of the parties herein are said to be as under Plot Originally in Share of petitioners Share of No. name of respondents 901 Mahadeo Half Half 902 Mewa Full gifted by Koleshra Devi ----- 903 Mahabir Mewa Three Fourth Half of Mawa One fourth one Mahadeo gifted by Koleshra Devi One fourth of Mahadeo fourth of Mahadeo Total Three fourth One fourth The learned companyncel appearing on behalf of the appellants would companytend that having regard to the fact that a finding of fact had been arrived at that Koleshra Devi was possessed of the property in question, the High Court companymitted a manifest error in interfering therewith. Our attention in this behalf has been drawn to a decision of this Court in Raghubar Singh and Ors. v. Gulab Singh Ors., 1998 6 SCC 314. Mr. Upadhyay, learned senior companynsel appearing on behalf of the respondents on the other hand would support the judgment. We may before adverting to the question raised before us must observe that the High Court dealt with the matter in a very slipshod manner. It interfered with the finding of fact arrived at by the First Appellate Court without assigning any reason therefor .While exercising its Jurisdiction under Section 100 of the Code of Civil Procedure. The High Court is required to formulate a substantial question of law in relation to a finding of fact. The High Court exercise a limited jurisdiction in that behalf. Ordinarily unless there exists a sufficient and companyent reasons, the findings of fact arrived at by the Courts below are binding on the High Court. The First Appellate Court clearly came to the following companyclusion Mewa Mahto died leaving behind Demoder Mahto and Damodar Mahto died leaving behind Kaulashwari who according to the discussed evidence came into possession as limited owner and number as maintenance holder only as alleged by the respondent. Before passing of the Hindu Succession Act 1956 She was limited owner and in that capacity she was companypetent enough to remain in possession of the lands recorded in the name of Mewa Mahto and fter passing of the Hindu Succeession Act she become absolute owner. The gift deed dated 7.5.1960 was executed after passing of the Hindu Succession Act when she has full authority to execute the gift deed. The learned Subordinate Judge has given numberimportance to the gift deed Ext.1 and hold that in the lost it importance in eye of law. As mentioned above Kauleshwari has executed the deed after passing of the Hindu Succession Act and in that circumstances it being documents of 30 years old carried presumption of genuineness. Once it was found that Koleshra Devi was possessed of the land in question in lieu of her right of maintenance, in our opinion, Sub-Section 1 of Section 14 of the Hindu Succession Act, 1956 will clearly be attracted. In Raghubar Singh and Ors. v. Gulab Singh Ors., 1998 6 SCC 314 this Court stated the law in the following terms The obligations, under the Shastric Hindu Law, to maintain a Hindu widow out of the properties of her deceased husband received a statutory recognition with the companying into force of the Hindu Womens Rights to Property Act, 1937. the law on the subject was, thereafter, companysolidated and companyified by the Hindu Married Womens Right to Separate Residence and Maintenance Act, 1946 which came into force on 23.4.1946. The right to maintenance of the Hindu widow, as a Pre-existing right, was thus recognised by the two statutes referred to above but it was number created for the first time by any of those statutes. Her right to maintenance exited under the Shastric Hindu law long before statutory enactments came into force. After the attainment of independence, the need for emancipation of women from feudal bondage because even more imperative. There was growing agitation by Hindu women for enlargement of their rights as provided by the Shastric Hindu law in various spheres. It was at this juncture that Parliament stepped in and enacted various statutes like the Hindu Marriage Act, 1956 the Hindu Adoption and Maintenance Act, 1956 and the Hindu Succession Act, 1956 providing for intestate succession. The Hindu Succession Act, 1936 made far-reaching charges in the structure of Hindu law by removing the traditional limitations on the powers of a Hindu widow to deal with the property of her deceased husband in her possession in lieu of her right to maintenance and the Act made her an absolute owner of the property, over which hitherto fore, she had only a limited right. It was further held 24Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife that right in the case of a widow is a pre-existing right , which existed under the Shastric Hindu Law before the passing of the 1937 or the 1946 Acts. Those Acts merely recognised the position as was existing under the Shastric Hindu law and gave it a statutory backing. Where a Hindu widows is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance. In Shakuntala Devi v. Kamla and Ors., 2005 5 SCC 390 it was observed However, the decision of this Court in the case of Balwant Singh, 1997 7 SCC 137 would have a bearing on the merits of this case wherein it is held that suit for possession would number be maintable on the basis of a declaratory decree as the declaratory decree did number companyvey any title in favour of the reversioners. This was a case under the Hindu Law wherein the widow of the original owner in the year 1954 made a gift and got the land mutated in favour of her adopted sons. The reversioners filed a suit seeking a decree that the alienation made by the widow was number binding on their reversionery rights. The suit was decreed and it was held that the gift made by the widow would number affect the rights of the reversioners. The property was remutated in the name of the widow. In the year 1970, the widow again gifted the suit property to the adopted sons and she died in the year 1973. In a suit for recovery of possession by the reversioners on the basis of the earlier decree, the companyrt held that since the widow companytinued to be in possession of the property even after the declaratory decree obtained by the reversioners because of the enlarged rights she got under the Hindu Succession Act, 1956 which made her the absolute owner of the property, the gifts of the property made by her to her adopted sons in the year 1970 companyld number be set aside. Almost similar are the facts of this case inasmuch as in this case also since on the companying into force of the Hindu Succession Act by virtue of Section 14 1 , the limited right got by Uttamdassi under the will got enlarged to an absolute right in the suit property. Thus, she became absolute owner of the property hence, any declaratory right obtained earlier by the reversioner as companytemplated in the will cannot be the basis on which the suit for Possession companyld be maintained unless, of companyrse, the claimants in the suit for possession established a better title independent of the declaratory decree obtained by them.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 2436 to 2438 of 1989. From the Judgment and Orders dated 7.4.83 and 2.5. 1986 of the Orissa High Court in O.J.C. Nos. 108 and 109 of 1986 and 6 of 1984 respectively. U. Mehta, Gobind Das and Vinoo Bhagat for the Appellants. L. Sanghi, R.K. Mehta and A.K. Panda for the Respondents. The Judgment of the Court was delivered by OJHA, J. Special leave granted. These three appeals raise a companymon question about the interpretation of the term family in Section 37 b of the Orissa Land Reforms Act, 1960 hereinafter referred to as the Act . According to clause a of Section 37 of the Act the term person includes inter alia family. Clause b of Section 37 being the clause under companysideration may usefully be reproduced. It reads b family in relation to an individual, means the individual, the husband or wife, as the case may be, of such individual and their children, whether major or minor, but does number include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970. According to the appellants in these three appeals partition in their respective families had been taken place in the year 1965. The Act except Chapters III and IV came into force on Ist October, 1965. Chapter IV of the Act which companytains the provisions relating to ceiling and disposal of surplus land came into force on 7th January, 1972. Suo motu proceedings under Section 42 of the Act for declaration of surplus land and companysequential purposes were initiated in the year 1974. Objections were filed asserting inter alia that in view of the partition in the families of the appellants in the year 1965 the land in the ancestral properties which fell in the share of the appellants companyld number be clubbed with those of their father. This companytention, however, was number accepted on the definition of the term family companytained in Section 37 b of the Act. Such of the major married sons who as such had separated by partition before the 26th day of September, 1970 as companytemplated by the definition of the term family were allotted separate ceiling units but so far as the appellants are companycerned their shares were clubbed with those of their father and only one ceiling unit was allotted as companytemplated by the relevant provision of the Act. The appellants having failed to get relief in the appeals and revisions filed by them under the Act challenged the orders passed by the various authorities under the Act in writ petitions before the .High Court of Orissa. These writ petitions were dismissed relying on the decision of a Full Bench of that Court in Nityananda Guru v. State of Orissa and others, A.1.R. 1983 Orissa Page 54 F.B. . It is these orders of the High Court which have been challenged in these appeals. The validity of Section 37 b of the Act does number appear to have been challenged before the High Court number has it been seriously challenged even before us except by making a faint submission that even if by virtue of the said provision being incorporated in the 9th Schedule, it may be immune from challenge in view of Article 3lB of the Constitution, the protection under Article 31C would number be available to it and it would be hit by Article 14 unless it was established that it had nexus with the policy of the State towards securing any of the principles laid down in Part IV of the Constitution. This submission even if it is permitted to be raised for the first time in this Court has obviously numbersubstance in view of the undisputed position that the Act aims at agrarian reform and the provisions with regard to declaration of surplus land and its distribution among the have-nots namely landless persons is apparently to give effect to the policy of the State towards securing the principle laid down in Article 39 b of the Constitution occurring in Part IV thereof and Section 37 b has a clear nexus with that policy. The aforesaid submission has, therefore, numbersubstance. At this place it may also be pointed out that validity of analogous provisions dealing with laws for declaration and distribution of surplus land framed by the States of Andhra Pradesh, Haryana and Maharashtra has already been upheld by this Court after rejecting challenges to them on various grounds in Tumati Venkaish etc. etc. v. State of Andhra Pradesh, 1980 3 SCR 1143 Seth Nand Lal Anr. v. State of Haryana Ors., 1980 3 SCR 1181 and Waman Rao Ors. etc. etc. v. Union of India and Ors., 1981 2 SCR 1. The main attack against the judgment of the Full Bench of the Orissa High Court in the case of Nityananda Guru supra relying on which the writ petition filed by the appellants were dismissed by the High COurt has been on the ground that partition in the respective families of the appellants in the year 1965 having been accepted, Section 37 b of the Act had to be read in such a manner as to exclude the land which had fallen to the share of the appellants even though they did number fall within the category of a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970 as companytemplated by the definition of the term family in the said section. It was urged that this purpose companyld be achieved by adding the word or between the words major and married. According to learned companynsel if that is done the term individual would number include a major son who had separated by partition before the 26th day of September, 1970 even if he had number married prior to that date. We find it difficult to take recourse to this mode of interpretation of Section 37 b in view of its plain language. 1n British India General Insurance Co., Ltd. v. Captain Itbar Singh and Others, 1960 1 SCR 168 sub-section 2 of Section 96 of the Motor Vehicles Act, 1939 was sought to be interpreted by the learned Solicitor General in a manner which involved addition of certain words. The submission was repelled and it was held The learned Solicitor General companycedes this and says that the only word that has to be added is the word also after the word grounds. But even this the rules of interpretation do number permit us to do unless the section as it stands is meaningless or of doubtful meaning, neither of which we think it is. On a plain reading of the definition of the term family in Section 37 b of the Act we are of the view that the said definition as it stands is neither meaningless number of doubtful meaning. In this companynection, it may be pointed out that keeping in view the agrarian reform which was companytemplated by the Act and particularly the provisions of Chapter IV relating to ceiling and disposal of surplus land which were calculated to distribute the surplus land of big tenure holders among the overwhelming have-nots of the State the Legislature in its wisdom gave an artificial meaning to the term family. The main provision companytaining the definition of the term is to be found in the first part of Section 37 b namely family in relating to an individual means the individual, the husband or wife as the case may be of such individual and their children whether major or minor. The later part of Section 37 b namely but does number include a major married son who as such had separated by partition or otherwise before the 26th day of September, 1970 does number on the face of it companytain a matter which may in substance be treated as a fresh enactment adding something to the main provision but is apparently and unequivocally a proviso companytaining an exception. This admits of numberdoubt in view of the words but does number include. In the Commissioner of Income Tax, Mysore The Indo Mercantile Bank Limited, 1959 Supp. 2 SCR 256. it was held Ordinarily the effect of an excepting or a qualifying proviso is to carve something out of the preceding enactment or to qualify something enacted therein which but for the proviso would be in it and such a proviso cannot be companystrued as enlarging the scope of an enactment when it can be fairly and properly companystrued without attributing to it that effect. Emphasis supplied That apart the submission made by learned companynsel for the appellants would also lead to an anomalous situation if the word or is added between the words major and married. Not only a major unmarried son who had separated by partition before the 26th day of September, 1970 would get excluded from the definition of the term family even a minor married son would get so excluded. The result would be that even though marriage of a minor son is prohibited by law such son would be placed at an advantageous position to a minor son who was law-abiding and had number married. Further the submission made by learned companynsel for the appellants companypletely ignores the words as such used in the later part of Section 37 b which companytains the exception referred to above. Given its proper meaning the words as such can only be interpreted to mean that it is only such son who would get the benefit of the exception who had separated by partition or otherwise before the 26th day of September, 1970 as major married son. The submission by companynsel for the appellants that the words as such qualify only son and number major married son and are meant to distinguish son from brother or uncle etc. is misconceived on the plain language of Section 37 b which companytemplates clubbing of land of spouse and children only and number of brother and uncle etc. So, the question of using the words as such to distinguish son from brother or uncle etc. does number arise. Further, for accepting this submission the words major married will have to be omitted as superfluous which cannot be done in the garb of interpretation. Learned companynsel for the appellants also urged that a son who had separated by partition or otherwise from his father was himself an individual and if his land was clubbed with that of his father, he will be subjected twice to the provisions relating to declaration of surplus land. This submission too is equally untenable. Land of such son alone who does number fall within the exception is to be clubbed with that of his father and with regard to land which had been so clubbed the son obviously cannot be treated as another individual in his own right for purposes of declaration of surplus land. Only such son who falls within the exception will be liable to be dealt with as an individual in his own right, as his land has number been clubbed with that of his father. Even on the facts of these appeals numberhing has been brought to our numberice to indicate that the land of the appellants which was clubbed with that of their father was subjected twice to the provisions relating to declaration of surplus land treating the appellants also as individuals. It was then urged by learned companynsel for the appellants that according to the definition of the term family as companytained in Section 37 b of the Act, land of a married daughter is liable to be clubbed twice firstly, with that of her father and secondly, with that of her husband. Accompanyding to him it is against the spirit of the law dealing with the question of declaration of surplus land. Suffice it to say, so far as this submission is companycerned that numbere of appellants in these appeals is a married daughter and as such we do number find it necessary to go into this question. We may also point out that dealing with an almost similar submission with regard to interpretation of Section 123 7 of the Representation of the People Act, 1951 it was held by a Constitution Bench of this Court in Rananjaya Singh v. Baijnath Singh and others, 1955 S.C.R. Page 671 at 676 The learned advocate, however, companytended that such a companystruction would be against the spirit of the election laws in that candidates who have rich friends or relations would have an unfair advantage over a poor rival. The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly number be given effect to in opposition to the plain language of the sections of the Act and the rules made thereunder. If all that can be said of these statutory provisions is that companystrued according to the ordinary. grammatical and natural meaning of their language they work injustice by placing the poorer candidates at a disadvantage the appeal must be to Parliament and number to this Court. In view of the foregoing discussion we are of the opinion that the Full Bench of the Orissa High Court in the case of Nityananda Guru supra lays down the companyrect law. One more submission has been made by learned companynsel for the appellants in the Civil Appeal arising out of SLP Civil No. 9079 of 1986. It has been urged that certain Home-Stead urban land of the appellants number companynected with agricultural lying inside Udala Notified Area Council has wrongly been included as agricultural land in the draft statement. This submission does number appear to have been made either before the High Court or before the authorities under the Act. In the companynter affidavit filed by the Additional District Magistrate Land Reforms , Mayurbhanj, Orissa it has been stated in reply to paragraphs 21 to 24 of the SLP that there is numberHome-Stead land and numbernon-agricultural land belonging to the appellant-land holders in the Notified Area Council of Udala. It has also been stated in paragraph 3 c of the said companynter affidavit that numberNotification as companytemplated by Section 73 c of the Orissa Land Reforms Act has been made by the State Government. It has further been stated therein that the Urban Land Ceiling and Regulation Act, 1976 has number been made applicable so far to the Udala Notified Area Council. In this view of the matter it is number possible for us to record any finding with regard to this submission, and companysequently we express numberopinion in this behalf.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 437-437 and 1460 of 1970. Appeals by Special Leave from the Judgments and orders dated 24-3-1969 10-11-1969 of the Kerala High Court in Writ Appeal Nos, 451/79, 630/69 807/69. B. Divan, M. Vellapally and T. M. Ansari for the Appellant in CA 437/70. Vellapally and T. M. Ansari for the Appellant in A. 438/ 70. Kapil Sibal, Vellapally and T. M. Ansari for the Appellant in A. 438/70. Kapil Sibal, M. Vellapally and T.M. Ansari for the Appellant in 1460/70. T. Harindranath and K. M. K. Nair for the Respondents in all the appeals. The Judgment of the Court was delivered by KAILASAM, J. These three appeals are by special leave granted by this Court against the judgment and order of the High Court of Kerala in Writ Appeals Nos. 451, 630 and 807 of 1969 respectively. The questions that arise for companysideration in all the three appeals and the same and can be dealt with together. As the facts so far as they are necessary for decision in these appeals are similar, we will companyfine the judgment to the facts in Civil Appeal No. 437 of 1970. The appellant in Civil Appeal No. 437 of 1970 is Travancore tea Estates Co. Ltd. Vandiperiyar in Kerala State. The 1st respondent is the State of Kerala and respondents number. 2 and 4 are the authorities functioning under the Kerala Motor Vehicles taxation Act Act 24 of 1963 which will hereafter be referred to as the Act, was brought into force on 1-7-1963. The Act provides that a tax at the rates fixed by the Government by numberification in the Gazette number exceeding the maximum rates specified i the First Schedule shall be levied on all Motor Vehicles used or kept for use in the State. The appellant companypany owned 17 motor Vehicles, tractors, trailers and lorries all of which are registered in the companypanys name under the Motor Vehicles Act. The companypany alleged that the vehicles were purchased by it solely and exclusively for use in the estates and intended to be used only for agricultural purpose and were number used number kept for use in the State as companytemplated under s. 3 of the Act. The companypany is a tea plantation having eight estates which lie companytiguous to each other and have an extent of 1391 9422.44 acres in the aggregate. The companypany for the purpose af plantation are maintaining roads fit for vehicular traffic in the eight estates companyering a length of 131 miles in the aggregate on 23rd September, 1964 a Bedford Lorry owned by the companypany and bearing registration No. KLK-1540 was seized by the police and taken into custody under s. 13 of the Act. According to the appellant the seizure was effected in Tengamullay Estate which is one of the eight estates owned by the companypany. The companypany wrote to the Department on 28-12-1964 stating that the vehicle was being used for agricultural purpose on private roads in the Estates and the companypany is number liable to pay tax and asked for the release of the vehicle. On the companypany paying a sum of Rs. 3,150/- as tax under protest for the period between 1-7-63 to 31-12-94, the vehicle was released. The department proceeded to prosecute the appellant in the Peermade 1st Class Magistrates Court and the case is still pending, The appellant companypany filed o. P. No. 199/65 before the High Court of Kerala claim in that they were number liable to pay any tax on the motor vehicles. The High Court by its judgment dt. 3rd March, 1966 directed the Regional Transport officer, Kottayam-2nd respondent herein, to examine the question raised in the writ petition and to pass final orders. It also directed that if the petitioner was aggrieved with the order he was at liberty to approach the High Court. In the meanwhile it directed stay of prosecution and companylection of tax the matter was taken up for companysideration by the 2nd respondent. The 2nd respondent rejected the pleas of the appellant and by his order dt. 12- 4-68 held that the 13 vehicles mentioned in the original Petition were liable to pay was under they act. The appellant filed a petition before the High Court for appropriate relief. The High Court disposed of the petition- P. No. 2173/68 along with o. P No. 2081/68 filed by Peermade Tea Co. who are the appellants in C.A. 438/70 in this Court, by a companymon order dt. 19th December, 1968. The learned Judge held that the language in s. 3 of the Act showed that there is a departure from the legislative policy of restricting the tax liability only to vehicles using pubic roads. It held that the tax is imposed by s. 3 on alt the motor vehicles used or kept for use in the State irrespective of any question as to whether they are used or kept for G use on pubic roads or number. It rejected the companytention on behalf of the appellant that legislature must be taken to have intended to levy such tax only on motor vehicles using or kept for use on public roads. The learned Judge also held that the Act is number beyond the companypetence of the legislative powers of the State as the tax is leviable by the State in respect of all motor vehicles are used or kept for use in the State quite irrespective of any question as whether or number such vehicles are used on public roads. 1392 Aggrieved by the decision of the single Judge the appellant took the matter up on Letters Patent Appeal. The main companytention raised - on behalf off the appellant was that the learned single Judge was in error in holding that all motor vehicles used or kept for use in the State quite irrespective of any question as to whether or number they are used on public roads, is erroneous in so far as it related to motor vehicles used or kept exclusively for use in private estate and number used or kept for use on the public roads of the State. The Letters Patent Bench affirmed the decision of the single Judge and rejected the appeal. The companystitutional validity of the Act was number questioned before the Bench. Holding that the legislative Entry 57 if the State list only required that the vehicles should be suitable for use on roads and the charging section only provided that the vehicle should be used or kept for use in the State the required companyditions were satisfied and there would be numberjustification for reading into the statute words that and number there, and restricting the levy only on vehicles using public roads. While number companytesting the companyrectness of the observation of the Bench of the Kerala High Court that the levy cannot be restricted to vehicles using the public roads, it was submitted that the words in s. 3 cl. 1 of he Act shall be levied on all motor vehicles used or kept for use in the State should be companyfined to vehicles used or kept for use on the public roads of the State, and number to vehicles that arc intended to be companyfined within the premises of the Estate. In other words the companytroversy between the parties before the R.T.O. the single Judge of the High Court and the Bench of the High Court can be stated by extracting the question at issue as framed by the R.T.O. I understand that the roads used by these vehicles even those within the estates companye under the definition of Public Roads and Public Place since at present I have . number afforded opportunity to the companypany to refute the basis on which that fact is to be found. I make it clear that I am number relying on that matter as a basis for this order and I reserve my right to investigate that matter if needed be later. I assume for argument sake without companyceding that the estate roads are private roads. Even in that case, I am of . the view that the companypanys vehicles are liable to pay tax. It is number in dispute that the vehicles are used and are kept for use within the State The companypany roads arc within the Kerala State . It is also number disputed that the vehicles are registered and their registration certificates are current and they are usable motor vehicles. The tax levied under the M.V.T. Act is a tax on the possession of usable motor 1393 vehicle and it is realised for the propose of State Revenue. Such being the nature of the levy according to me, I feel that irrespective of the question whether the road on which the vehicle is intended to be used is private or public, the tax is attracted. The question that falls for decision is whether on the assumption that the motor vehicles are used or kept for use within the estate, and number intended to be used on public roads of the State the tax is leviable? In order to appreciate the question raised, it is necessary to refer to the relevant entry in the Constitution, the provisions of the Act and the Motor Vehicles Act and the decision relating to the question rendered by this Court. Entry 57 in List II of the Constitution relates to taxes on vehicles, whether mechanically propelled or number, suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III. This entry enables the State Government to levy a tax on all vehicles whether mechanically propelled or number, suitable for use on roads. emphasis supplied . There is numberdispute that the vehicles are mechanically propelled and suitable for use on roads. Section 3 of the impugned Act Kerala Motor Vehicles Taxation Act Act 24 of 1963 provides that a tax shall be levied on all motor vehicles used or kept for use in the State. The levy is within the companypetence of the State legislature as entry 57 in List II authorises by on vehicles suitable for use on roads. It has been laid down by this Court in Bolani Ores Ltd. v. Orissa, that under Entry 57 of List II, the power of taxation cannot exceed companypensatory nature which must have some nexus with the vehicles using the roads i.e. public roads. If the vehicles do number use the roads, numberwithstanding that they are registered under the Act, they cannot be taxed. If the words used or kept for use in the State is companystrued as used or kept for use on the public roads of the State, the Act would be in companyformity with the powers companyferred on the State legislature under Entry 57 of List II. If the vehicle are suitable for use on public roads they are liable to be taxed. In order to levy a tax on vehicles used or kept for use on public roads of the State and at the same time to avoid evasion of tax the legislature has prescribed the procedure. Subsection 2 of sec. 3 provides that the registered owner or any person having possession of or companytrol of a motor vehicle of which a certificate of registration is current shall for the purpose of this Act be deemed to use or kept such vehicles for use 1394 in the State except during any period for which the Regional Transport Authority has certified in the prescribed manner that the motor vehicle has number been used or kept for use. Under this sub-section there is a presumption that a motor vehicle for which the certificate of registration is current shall be deemed to be used or kept for use in the State. This provision safeguards the revenue of the State by relieving it from the burden of proving that the vehicle was used or kept for use on the public roads of the State. At the same time the interest of the bonafide owner is safeguarded by enabling him to claim and obtain a certificate of number-user from the prescribed authority. In order to enable the owner of the vehicle or the person who is in possession or being in companytrol of the motor vehicle of which the certificate of registration is current to claim exempting from tax he should get a certificate in the prescribed manner from the Regional Transport Officer. Section 5 of the Act provides for exemption from payment of tax under certain circumstances. It enables the registered owner or the person having possession or companytrol of such vehicle to give previous intimation in writing to the R.T.O. that the vehicle would number be used for such period and at the same time surrender certificate of registration and permit of the vehicle. Section 6 enables the registered owner or a person in possession or companytrol of such a vehicle to get refund of tax if companyditions specified in s. 6 are satisfied. Thus in order to enable the registered owner or person in possession or companytrol of a vehicle to get exemption of tax, advance intimation of the T.O. along with the surrender of certificate of registration is necessary. The provision of s. 3, sub-sec. 2 as well as 6. 5 and s. 6 are meant to prevent evasion of tax and to provide for exemption from tax in proper cases. Though the purpose of the Act is to tax vehicles that are used or kept for use on the public roads of the State, the State is entitled for the purpose of safeguarding the revenues of the state and to prevent evasion of the tax, to enact provision like provision as in s. 3 raising a presumption that the vehicle is used or kept for use in the Situate without any further proof unless exemption is claimed under s. 3 2 , s. 5 and s.6. It may be observed that reading sections 3, 5 and 6 it is clear that a levy of tax is companytemplated only on the vehicles. that are used or kept for use on the public roads of the state. While we agree with the companytentions of the learned companynsel for the appellant that the tax is only eligible on vehicles used or kept for use on public roads, we must deserve that in order to claim exemption from payment of tax requirements of s. 3 2 or ss. 5 and 6 should be satisfied. Surrender of the registration certificate 1395 companytemplated under s. 5 is for making sure that the motor vehicle is number being put to any use and does number have the effect of annulling the certificate of registration. If the requirement companytemplated under the Act is number satisfied the registered owner or person m possession or companytrol of the vehicle would number be entitled to claim any exemption from payment of tax. It remains for companysideration as to what is the appropriate order that should be passed on the facts and circumstance of this case. As a general proposition of law as exemption from payment of tax had number been claimed and obtained as required under this Act, the appellant would be liable to pay tax but as already pointed out and set out clearly in the order of the R.T.O., the question that was raised and disputed was whether on the assumption that the vehicles were kept for use in the states alone and number for use on the public roads of the State, tax is leviable. The authorities proceeded on the basis that even assuming that the vehicles were number intended to be used on the public roads, they are liable to tax. In this view, the appellant did number apply for exemption or numberify number-user as required under the provisions of the Act. But on the facts and circumstances of the case it is clear that the appellant claimed for exemption from tax on the ground that it was number being used on the public roads. In the circumstances of the case we have to take it that though, in terms, requirement of ss. 3 and 5 have number been companyplied with, in effect the requirements have been satisfied as the dispute proceeded throughout on that basis. But as has been specifically stated by the R.T.O., the question whether estate roads are. public roads is reserved for further investigation and decision. Equally the R.T.O. will be at liberty to act under s. 5 2 of the Act and decline exemption from the liability to pay tax for the relevant period if on verification it is found that the vehicle has been used during that period on the public road. Before companycluding, we would refer to a companytention raised by the learned companynsel based on the decision of this Court in Bolani Ores Ltd. v. Orissa, supra . The plea of the learned companynsel is that the word motor vehicle should be understood as defined by s. 2 18 of the Motor Vehicles Act, 1939 and excluded from taxation motor vehicles used solely upon the premises of the owner. As the vehicles with which we arc companycerned were claimed to have been kept for use solely in the premises of the companypany, it was companytended that the vehicles are number exigible to tax. This Court in the decision cited was dealing with the Orissa Motor Vehicles Taxation Act, 1930. Section 2c of the Orissa Taxation Act adopted the definition of Motor vehicles Act as found in Motor Vehicles Act, 1914. The Motor vehicles Act. 914 was repealed and replaced by the Motor Vehicles 1396 Act, 1939. The definition of motor vehicle in s. 2 18 of the Motor Vehicles Act, 1939 excluded motor vehicles used solely upon the premises of the owner. The Orissa Motor vehicles Taxation Act was amended and orissa Amendment Act, 1943 re-enacted the provisions of the Taxation Act. Motor Vehicles was defined under s. 2 18 of the Motor Vehicles Act, 1939 excluding vehicles used solely upon the premises of the owner. Subsequently the definition of motor vehicle under s. 2 18 of the Motor Vehicles Act was amended by the Act 100 of 1956 which companyfined the exemption from taxation to motor vehicles of a special type adopted for use only in a factory or in any other enclosed premises. The exemption from tax only be claimed after amendment to s. 2 18 by Act, 100 of 1956, if the vehicle was of special type adopted for use only in a factory or in any other enclosed premises and the exemption that was avail able before the amendment by Act 100 of 1956 to Motor Vehicles used solely upon the premises of the owner was taken away. This Court held if the subsequent, Orissa Motor Vehicles Taxation Amendment Act, 1943, incorporating the definition ofmotor vehicle referred to the definition of motor vehicle under the Act as then existing, the effect of this legislative method would, in our view, amount to and incorporation by reference of the provisions of s. 2 1 of the Act in s. 2 c of the Taxation Act . Any subsequent argument in the Act or a total repeal of the Act under a fresh legislation on that topic would number affect the definition of motor vehicle in s. 2 c of the Taxation Act. As a result this Court held that the definition of motor vehicle given in s. 2 18 of the Motor Vehicles - Act, 1939 before the amendment by Act 100 of 1956 was applicable. Relying on this decision, the learned companynsel submitted that the test that is to be applied to determine whether motor vehicle is liable to tax or number is whether it companyes under the exemption provided by under s. 2 18 of the Motor Vehicles Act, 1939 before the amendment. We are unable to accept the companytention mainly on the ground that the Kerala Motor Vehicles Taxation Act, 1963 Act 24 of 1963 came into force on 18-3-63. Section 2 1 of the Taxation Act provided that words and expression used but number defined in the Motor Vehicle Act, 1939 Central Act 4 of 1939 shall have the meaning respectively assigned to them in that Act. On the date when the Kerala Motor Vehicles Taxation Act was enacted, Motor Vehicles Act 1939 was amended by Act 10 of 1956 and the amended definition on the date when the Taxation Act came into force exempted only motor vehicles which are of a special type adopted for use only in a factory or in any other enclosed premises. The amended definition will have to be read into the Taxation Act which was enacted subsequent to the date of the ,. amendment of the definition of Motor Vehicle by Act 100 of 1956 1397 In this view we feel that the decision in Bolanis case supra will number be of any assistance to the learned companynsel for the appellants.
BHARUCHA, J. Before it was held to be unconstitutional on 28th April, 1993, Section 13AA of the Orissa Sales Tax Act read thus 13-AA Deduction of tax at source from the payment to works companytractor Notwithstanding anything companytained in Section 13 or any other law or companytract to the companytrary, any person responsible for paying any sum to any companytractor for carrying out any works companytract in pursuance of a companytract between the companytractor and a Central Government or any State Government, or b any local authority, or c any authority or Corporation established by or under a statute, or d any Company incorporated under the Companies Act, 1956 1 of 1956 including any State or Central Government undertaking, or e any Co-operative Society or any other Association registered under the Societies Registration Act, 1860, 21 of 1860 shall at the time of credit of such sum to the account of the companytractor or at the time of payment thereof in cash or by issue of a cheque or draft or any oter mode, whichever is earlier, deduct an amount towards sales tax equal to two percentum of such sum in respect of the works companytract Provided that if the value of the works companytract does number exceed rupee one lakh, numbersuch deduction shall be made. While making deduction as referred to in sub-section 1 , the deducting authority shall grant a certificate to the companytractor in the form prescribed and shall send a companyy thereof to the Sales Tax Officer within whose jurisdiction the works companytract is executed. The amount deducted from the Bills or Invoices shall be deposited into the Government Treasury within one week from the date of deduction in such form or challan as may be prescribed. Such deposit into the Treasury shall be adjusted by the Sales Tax Officer towards the sales tax liability of the Works companytractor and would also companystitute a good and sufficient discharge of the liability of the deducting authority to the companytractor to the extent of the amount deposited. If any person companytravenes the provisions of sub-section 1 or sub-section 2 or sub-section 3 of this Section, the Sales Tax Officer shall, after giving him an opportunity of being heard, by an order in writing, impose on such person penalty number exceeding twice the amount required to be deducted and deposited by him into Government Treasury. Section 13AA, as it was then read, was struck down by the High Court of Orissa on 28th April, 1993 in the case of Brajendra Mishra vs. State of Orissa Ors., 1994 92 STC The High Court held that Section 13AA did number provide any mechanism to exclude a transaction from its purview even if, ultimately, the transaction was number at all liable to the levy of sales tax. In other words, even in the case of a pure and simple labour companytract or service companytract where the question of sale would number arise, the person responsible for making any payment to a companytractor had numberoption but to deduct two per cent of such sum towards sales tax. Though a transaction which might number be a sale at all was made liable for levy of sales tax, yet in respect of that transaction power had been companyferred to make deduction of two per cent from the amount to be paid. In the absence of any discretion with the authority and in the absence of any mechanism by which the companytractor companyld approach any authority and obtain a certificate to the effect that the transaction did number amount to a sale, the deduction of two per cent from the amount companyld number but be held to be grossly discriminatory and companyfiscatory in nature and, therefore, the same had to be struck down. The High Court added that by companyferring arbitrary, unbridled and uncanalised powers on the person companycerned to deduct two per cent from the sum payable to the companytractor, irrespective of the question whether, ultimately, the transaction was liable for payment of any sales tax at all, companyld number be held to be a levy of tax under any valid legal provision. It was true that the deduction of two per cent under Section 13AA was to be ultimately adjusted where the transaction in question was liable for levy of sales tax, but where the transaction was number at all liable for levy of sales tax, there the question of adjustment would number arise and, therefore, the deduction would be companyfiscatory in character and effect and it companyld number be held to be a valid provision within the legislative companypetence of the legislature imposing the tax and authorising the companylection thereof. A bare reading of Section 13AA made it explicitly clear that the amplitude of the incidence of tax had been widened so as to include transactions which were outside the sphere of taxation available to the State legislature under Entry 54 of List II of the Seventh Schedule to the Constitution. Inasmuch as even in respect of a purely labour companytract or service charges, Section 13AA authorised deduction of two per cent from the bills of the companytractor, it companyld number but be held to be unconstitutional and void. The decision of the High Court was accepted and Section 13AA was replaced on 4th October, 1993 in the following terms, which are number under challenge. 13-AA Deduction of tax at source from the payment to works companytractors Notwithstanding anything companytained in Section 13 or any other law or companytract to the companytrary, any person responsible for paying any sum to any companytractor hereinafter referred to in this section as the deducting authority for carrying out any works companytract which involves transfer of property in goods, in pursuance of a companytract between the companytractor and Central Government or any State Government, or b any local authority, or c any authority or Corporation established by or under a statute, or d any Company incorporated under the Companies Act, 1956 1 of 1956 including any State or Central Government undertaking, or e any Co-operative Society or any other Association registered under the Societies Registration Act, 1860 21 of 1860 . shall, at the time of credit of such sum to the account of the companytractor or at the time of payment thereof in cash or by issue of a cheque or draft or any other mode, whichever is earlier, deduct an amount towards sales tax equal to four percentum of such sum in respect of the workscompanytract, if the value of the works companytract exceeds rupee one lakh. While making deduction as referred to in sub-section 1 , the deducting authority shall grant a certificate to the companytractor in the form prescribed and shall send a companyy thereof to the Sales Tax Officer within whose jurisdiction the works-contract is executed. The amount deducted from the Bills or Invoices shall be deposited into a Government Treasury within one week from the date of deduction in such form or challan as may be prescribed. Such deposit into Government Treasury shall be adjusted by the Sales Tax Officer towards the Sales Tax liability of the companytractor and would also companystitute a good and sufficient discharge of the liability of the deducting authority to the companytractor to the extent of the amount deposited. 5 a Where, on an application being made by the companytractor in this behalf, the Commissioner is satisfied that any works companytract of the nature referred to in sub-section 1 involves both transfer of property in goods and labour or service or involves only labour or service and, accordingly, justifies deduction of tax on a part of the sum in respect of the works-contract or, as the case may be, justifies numberdeduction of tax, he shall, after giving the companytractor a reasonable opportunity of being heard, grant him such certificate as may be appropriate, in the manner prescribed Provided that numberhing in the said certificate shall affect the assessment of the sales tax liability of the companytractor under this Act. Where such a certificate is produced by a companytractor before the deducting authority, until such certificate is cancelled by the Commissioner, the deducting authority shall either make numberdeduction of tax or make the deduction of tax as the case may be, in accordance with the said certificate. If any person companytravenes the provisions of sub-section 1 or 2 or 3 or of clause b of subsection 5 , the Sales Tax Officer shall, after giving him an opportunity of being heard, by an order in writing impose on such person penalty number exceeding twice the amount required to be deducted and deposited by him into government treasury. The appellant has a steel plant at Rourkela in the State of Orissa. A vast modernisation programme has been implemented there. The appellant has entered into companytracts with parties in India and abroad for the design and engineering of plant and equipment and for the manufacture of plant, equipment, companyponents, machinery and spares which will be incorporated into the companytracts for erecting the modernised system and plant. In other words, it has entered into, inter alia, works companytracts. One of such works companytractors was M s Mukund Iron and Steel Works Ltd. hereinafter called the Mukund . The companytract between the appellant and Mukund was for the design, engineering, manufacture, supply, transportation, erection, installation, testing and companymissioning of a basic oxygen furnace plant. The value thereof was Rs. 532 crores. According to the appellant, the break-up thereof is as follows a Supply of equipments from States outside Orissa by way of CST Sales. Central Sales Tax paid in Non-Orissa States. Both under Section 3 a and 6 2 of the CST. Rs. 317 Crores b Supply of equipments from other companyntries outside India on High Seas Sales basis under Section 5 of the CST Act Rs. 16 Crores c Supply of Steel by SAIL Rs. 18 Crores d Design Engineering and other services Rs. 103 Crores Fabrication, erection, structural, companystruction, civil companystruction, etc. Rs. 78 Crores Under the terms of Section 13AA, as presently enacted, the appellant deducted sales tax at source at the rate of four per cent in respect of payments to Mukund pertaining to d and e above. It did number deduct tax at source in respect of payments under items a , b and c for the reason that they were in respect of inter-State sales, outside sales and import sales and, therefore, outside the purview of the Orissa Sales Tax Act. The Commercial Tax Officer, Rourkela, did number accept this stand of the appellant and issued to it numberices to show cause why penalty proceedings should number be initiated in respect of the Assessment Years 1994-95 and 1995-96. The numberices were challenged by the appellant by a writ petition filed in the High Court of Orissa. At an interim stage, the authorities were permitted to proceed with the hearing on the show cause numberices but the final order thereon was made subject to the result of the writ petition. Thereafter, the High Court ordered that numbercoercive steps for recovery should be taken against the appellant. Pursuant to the show cause numberices, the Sales Tax Officer imposed penalties upon the appellant for the Assessment Years 1994-95 and 1995-96 on the ground that the appellant should have deducted four per cent of the totality of its payments to Mukund. The penalties, in the sum of Rs. 26.98 crores imposed by the order dated 11th November, 1997 for the Assessment Years 1994-95 and 1995-96, were challenged by the appellant in a fresh writ petition. On the earlier writ petition the order under challenge in the appeal was passed. It held that Section 13AA was number ultra vires the Constitution. On the second writ petition an order of deposit of fifty per cent of the demand was made, and that order is separately challenged. Upon the petition for leave to appeal to this Court, recovery of tax and penalty was stayed pending the disposal of the appeal. By virtue of Entry 54 of List II of the Seventh Schedule read with Article 246 of the Constitution of India, the States are empowered to levy taxes on the sale or purchase of goods, other than newspapers. The Fortysixth Amendment to the Constitution introduced, inter alia, clause 29A b in Article 366 of the Constitution as a result, tax on the purchase or sale of goods included 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. Article 286 1 of the Constitution states that numberlaw of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place outside the State or in the companyrse of the import of goods into, or export of goods out of the territory of India. Article 286 2 authorises Parliament by law to formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in sub-Article 1 . Acting upon this power, Parliament has set out in Sections 3, 4 and 5 of the Central Sales Tax Act, 1956 principles for determining when a sale or purchase of goods can be said to take place in the companyrse of inter-State trade or companymerce, when a sale or purchase of goods can be said to take place outside the State and when a sale or purchase of goods can be said to take place in the companyrse of import or export. In M s Gannon Dunkerley and Co. Ors. vs. State of Rajasthan Ors., 1993 1 SCC 364, this Court has held that it is necessary to exclude from the value of a works companytract the value of goods which are number taxable by a State in view of Sections 3, 4 and 5 of the Central Sales Tax Act, 1956. The value of goods involved in the execution of a works companytract has to be determined after making these exclusions from the value of the works companytract. With this background, we turn to analyse Section 13AA as it presently stands. By reason of sub-section 1 thereof, the person responsible for paying any sum to any companytractor for carrying out any works companytract which involves the transfer of property in goods number, for companyvenience, referred to as the owner is obliged to deduct, at the time of credit of that sum to the account of the companytractor or payment thereof to him, an amount towards sales tax equal to four per cent of such sum in respect of the works companytract, provided the value of the works companytract exceeds rupees one lakh. The deduction, therefore, is towards the sales tax that is payable to the State upon the works companytract and it is of four per cent of the value of the works companytract. Sub-section 2 requires the owner to grant to the companytractor a certificate in respect of such deduction. By reason of sub-section 3 , the amount that the owner has deducted must be deposited by him into the Government treasury within a week of the deduction. By reason of subsection 4 , such deposit is required to be adjusted by the Sales Tax Officer towards the sales tax liability of the companytractor and it companystitutes good and sufficient discharge of the liability of the owner to the companytractor to the extent of the amount deposited. Sub-section 5 a permits the companytractor to make an application to the Commissioner of Sales Tax and if the Commissioner is satisfied thereon that any works companytract involves both transfer of property in goods and labour or service or involves only labour or service and, accordingly, justifies deduction of tax on a part of the sum in respect of the works companytract or, as the case may be justifies numberdeduction of tax, he shall, . grant him such certificate as may be appropriate in the manner prescribed. To the extent of the amount mentioned in the certificate the owner must, by reason of sub-section 5 b , make numberdeduction of tax. The Commissioner is required only to see whether the works companytract involves transfer of property in goods and labour or service or only labour or service. If it involves only labour or service, he must certify that numberdeduction of tax shall be made and if it involves both transfer of property in goods and labour or service, he shall certify the deduction of a part of the sum payable by the owner to the companytractor. Sub-section 5 a takes numberaccount of the fact that even if a works companytract involves both transfer of property in goods and labour or service, State sales tax may number be payable upon the entire value ascribable to the transfer of property in goods for the reason that it is in the companyrse of inter-State sales, outside sales or sales in the companyrse of export number is such account taken elsewhere in Section 13AA. The form of the certificate which is referred to in sub-section 5 of Section 13AA is to be found in Form XI-C of the Orissa Sales Tax Rules. Part I thereof is the form for the application for the grant of a certificate and Part II is the form of the certificate itself. Both the forms make it clear that all that the Commissioner is required to look at is whether any labour or service is involved in the works companytract. Under sub-section 6 of Section 13AA, an owner who acts companytrary to the provisions of sub-sections 1 , 2 , 3 and 5 b thereof is liable to penalty number exceeding twice the amount required to be deducted and deposited The owner, therefore, should he companytravene sub-section 1 , would be liable to a penalty number exceeding twice the amount that he should have deducted under that sub-section. In Bhawani Cotton Mills Ltd. vs. State of Punjab Anr., 1967 3 SCR 577, this Court said, - If a person is number liable for payment of tax at all, at any time, the companylection of a tax from him, with possible companytingency of refund at a later stage, will number make the original levy valid because, if particular sales or purchase are exempt from taxation altogether, they can never be taken into account, at any stage, for the purpose of calculating or arriving at the taxable turnover and for levying tax. There can be numberdoubt, upon a plain interpretation of Section 13AA, that it is enacted for the purposes of deduction at source of the State sales tax that is payable by a companytractor on the value of a works companytract. For the purposes of the deduction neither the owner number the Commissioner who issues to the companytractor a certificate under Section 13AA 5 is entitled to take into account the fact that the works companytract involves transfer of property in goods companysequent upon of an inter-State sale, an outside sale or a sale in the companyrse of import. The owner is required by Section 13AA 1 to deposit towards the companytractors liability to State sales tax four per cent of such amount as he credits or pays to the companytractor, regardless of the fact that the value of the works companytract includes the value of inter-State sales, outside sales or sales in the companyrse of import. There is, in our view, therefore, numberdoubt that the provisions of Section 13AA are beyond the powers of the State legislature for the State legislature may make numberlaw levying sales tax on inter-State sales, outside sales or sales in the companyrse of import. It was companytended on behalf of the State that the appellant, as owner, had numberlocus to challenge the validity of Section 13AA. It was companytended that the moneys that were deducted were moneys that belonged to the companytractor and it was only the companytractor who companyld successfully lay such a challenge. The companytention ignores the fact that the appellant owner is aggrieved and damnified by the penalty that has been imposed upon it under sub-section 5 for companytravention of sub-section 1 of Section 13AA. It has, therefore, the standing to companytest the validity of Section 13AA. It was then companytended by learned companynsel for the State that the Preamble of the Orissa Sales Tax Act took account of the fact that that statute was limited to the sale or purchase of goods in Orissa. Unfortunately, it would appear that the State legislature overlooked its limitations, even as companytained in the Preamble, when enacting Section 13AA. It was also companytended that the deduction that was required to be made under Section 13AA 1 was of four per cent of the amount credited or paid by the owner to the companytractor, whereas the sales tax liability of the companytractor thereon was eight per cent. It was companytended that this requirement proceeded on the assumption that half of the amount was number liable to tax being in respect of inter-State sales, outside sales and export sales. No such assumption based on the rate of tax at any given point of time can be made. Section 13AA should have been precisely drafted to make it clear that numbertax was levied on that part of the amount credited or paid that related to inter-State sales, outside sales and sales in the companyrse of import, particularly after the previous Section 13AA had been struck down by the Orissa High Court for the reason that it was companyched in terms wider than were permissible to the State legislature and that judgment was accepted. In the result, the appeal is allowed and the judgment and order under appeal is set aside. Section 13AA of the Orissa Sales Tax Act, as amended with effect from 4th October, 1993, is struck down as being beyond the purview of the Orissa State Legislature. Such amount as has been companylected from the appellant under the provisions of Section 13AA shall forthwith be refunded by the State. There shall be numberorder as to companyts.
RUMA PAL, J. The appellants and the respondent No. 1 are all Executive Engineers in the Public Health Engineering Department of the Government of Manipur. All the appellants had Degrees in Engineering before they joined service. The respondent No. 1 obtained a Diploma in 1989 having duly qualified in both sections of the Associate Membership Examination of the Institution of Engineers AMIE . It is number in dispute that the AMIE Diploma is recognised by the Central Government as being on par with a Bachelors Degree of Engineering for the purpose of recruitment to superior posts under the Central Government. The question is whether the respondent No. 1 was eligible to be companysidered for promotion to the post of Superintending Engineer in 1991. The Rules regulating the recruitment to the post of Superintending Engineers of the State of Manipur were numberified on 18th October 1977. The Rules called The Manipur P.W.D. Irrigation and Flood Control Public Health Engineering Superintending Engineer Civil Superintending Surveyor of Works Recruitment Rules, 1977 provide that the post of Superintending Engineer shall be filled up by promotion from Executive Engineer Civil Mech and Surveyor of Works possessing Degree in Civil Mechanical Engineering or its equivalent from a recognised institution with 6 years regular service in the grade. The vacancy in the post of Superintending Engineer arose in 1991. In the same year the respondent No. 1 filed a writ application seeking directions on the State Government to companysider his name for promotion to the post as he had put in 12 years service in the grade and possessed the necessary educational qualifications. The writ application was opposed by the State Respondents. They companytended that the eligibility criteria required six years regular service after the educational qualification was obtained. In the writ petitioners case, his period of service after he obtained the AMIE diploma was far short of the requirement and as such, according to the respondents, he companyld number be companysidered for promotion to the post of Superintending Engineer. The writ application was allowed by the learned Single Judge on 17th March 1993. It was held that the requirement of six years service was independent of the requirement of educational qualifications and the eligibility criteria was fulfilled even if the requisite experience had been obtained before obtaining the educational qualifications. The appellants herein moved an application for review of the order before the Learned Single Judge. This was rejected. The appellants then filed an appeal before the Division Bench of the Gauhati High Court. The appeal was dismissed and the decision of the learned Single Judge was upheld. There is numberdispute that as on 1991 the respondent number1/writ petitioner had put in more than 6 years regular service in the grade. Of that period only a little over 2 years was after he was granted the AMIE Diploma. The companytroversy hinges on the interpretation of the word with used in the eligibility criteria. The word with has been defined in the New Shorter Oxford Dictionary 1993 ,diversely the meaning depending on the companytext in which it is used. But when it is used to companynect two numberns it means Accompanied by having as an addition or accompaniment. Frequently used to companynect two numberns, in the sense and as well. Applying the definition to the eligibility criteria it is clear that it requires the prescribed educational qualification and 6 years experience as well. Given the plain meaning of the phrase, the Court would number be justified in reading a qualification into the companyjunctive word and imply the word subsequent after the word with. Even on a point of principle it would be unreasonable to distinguish between the nature of the regular service required, as if the service in the grade subsequent to the obtaining of the necessary educational qualification were qualitatively different from the service in the grade prior thereto. In fact numbersuch case has been made out . The appellants companytention appears to have been based on the decision of this Court in N. Suresh Nathan and Another V. Union of India and Others 1992 Supp 1 SCC 584. In that case, the qualification for promotion prescribed was as under Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years service in the grade failing which Section Officers holding Diploma in Civil Engineer with six years service in the grade 50 per cent. Section Officers possessing a recognised Diploma in Civil Engineering with six years service in the grade 50 per cent. The Court held that the Rules would have to be read in keeping with the practice followed in the Department for a long time and that the period of service in the grade for eligibility for promotion companymenced from the date of obtaining the degree and the earlier period of service prior to the obtaining the degree was number companynted. Since this practice had been companysistently followed and was understood as such by all companycerned, the Court held that it would number be justified in taking the companytrary view and unsettling the settled practice in the Department. The decision in Suresh Nathans case has been explained in M.B. Joshi and Others Satish Kumar Pandey and Others 1993 Supp 2 SCC 419 Stephen Joseph V. Union of India and Others 1997 4 SCC 753 and finally in Anil Kumar Gupta and Others V. Municipal Corporation of Delhi 2000 1 SCC 128 as being limited to the facts of that case. In M.B. Joshis case the decision in Suresh Nathan case was distinguished in the facts of that case and it was indicated that when the language of the rule is quite specific that if a particular length of service in the feeder post together with educational qualification enables a candidate to be companysidered for promotion, it will number be proper to companynt the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose to give incentive to the employee to acquire higher education. See D. Stephen Joseph vs. Union of India at page 755 The Court in D. Stephen Josephs case was also of the view that the decision in Suresh Nathan was an exception to the accepted principle of interpretation of the rule on the plain language. In the last mentioned case, namely, Anil Kumar Guptas case, the essential qualifications for appointment were a Degree in Civil Engineering and b two years professional experience. The Court interpreted the language to mean that the two years professional experience need number entirely be experience gained after obtaining the Degree.
Mrs. Sujata V. Manohar. J. Leave granted. The appellant, at all material times, held the rank of Acting Major General in the Indian Army. He filed a writ Petition in the High Court of Madhya Pradesh challenging the inquiry proceedings held against him and his trial by a general Court Martial under the Army Act, 1950. This writ Petition has been dismissed by the impugned judgment and order of the High companyrt of Madhya Pradesh. Hence he has preferred the present appeal. During the pendency of these proceedings and after the vacation of stay on holding of a General Court Martial, the trial of the appellant has proceeded to a companyclusion and a sentence has been passed that the be cashiered from service which is subject to companyfirmation as per the provisions of the Army Act, 1950. The appellant has filed additional grounds of appeal before us challenging these findings. An earlier writ petition being Misc. Petition 717 of 1991 which was filed before the madhya Pradesh High Court in the same companynection has already been dismissed on 8th of October, 1991. However, the present writ petition has been examined on merits by the High Court and dismissed. We, therefore, propose to examine the various grounds urged by the appellant in support of his case. The appellant has argued his appeal in person at his insistence. The appellant who held the substantive rank of Brigadier at the material time was posted was posted in Agra from February 1988 to April 1989 as Commandant, Parachute Regimental Training Centre. In April 1989 he was given the acting rank of major General and was posted as General Officer Commanding, Vth Mountain Division in the Eastern Command. In July 1989 the appellant was called to Agra as a witness in a Court Martial going on against on e Major Mahapatra. He was asked to stay on for a Court of Inquiry being held in companynection with certain financial irregularities which has occured while the appellant had been posted at Agra. The proceedings of the Court of Inquiry companymenced on 26.7.1989. On 13.10.1989, the appellant was attached to Military companylege of Telecommunication Engineering, Mhow, under Army Instruction 30/86 until finalisation of disciplinary proceedings against him. The appellant was directed to report for duty at Mhow. Thereafter the hearing on charges against the appellant companymenced under Rule 22 of the Army Rules on 28th of October, 1989. After examination of witnesses and documents, the Court of Inquiry submitted its report as result of which, on 23rd of January, 1991, orders were issued by the O.C. - in-C Central Command fro assembly of a General Court Martial for trial of the appellant. The appellant objected to the Presiding Officer of the Court n the ground that he was biased against the appellant. Therefore, the Presiding Officer retired from the Court and Lt. General Y.A. Mande was appointed as the Presiding Officer. Lt. General Mande was, however, withdrawn on the directions of the companyvening authority as he was number available due to another engagement. The next senior most officer was appointed as the Presiding Officer. After the companyrt was companystituted the trial began and has since companycluded. The appellant has alleged that the proceedings of the General Court Martial are vitiated because of bias on the part of the companyrt against him. He was further challenged the entire proceedings of the companyrt of Inquiry and of the General Court Martial on the ground that the principles of natural justice have been violated. he was number given an adequate opportunity of defending himself. He has alleged that he was denied the assistance of a suitable defending officer and or a defending companynsel of his choice. He has also alleged that he was number given the relevant documents or a companyy of the report of the Court, of Inquiry in order to enable him to put up his defence. There are also various other technical objections raised by him. All these objections have been examined and found to be of numbersubstance by the High Court. Under Rule 177 of Army Rules, 1954, a Court of Inquiry can be set up to companylect evidence and to report, if so required, with regard to any matter which may be referred to it. The Court of Inquiry is in the nature of a fact-finding inquiry companymittee. Army Rule 180 provides, inter alia, that whenever any inquiry affects the character of military reputation of a person subject to the Army Act, full opportunity must be afforded to such a person of being present throughout the inquiry and of making any statement, and of giving any evidence he may wish to make or give, and or cross-examining any witness whose evidence, in his opinion, affects his character of military reputation and producing any witnesses in defence of his character of military reputation. The presiding officer of the Court of Inquiry is required to take such steps as may be necessary to ensure that any such person so affected receives numberice of and fully understands his rights under this rule. The appellant was accordingly present before the Court of Inquiry. Witnesses were examined by the Court of Inquiry in the presence of the appellant. He, however, declined to cross-examine the witnesses. Instead, the appellant moved an application for an adjournment for preparing his defence. He also applied that the evidence adduced before the Court of Inquiry should be reduced to writing. The Court of Inquiry numbericed that sufficient time had been granted to the appellant for preparation of his defence after receipt of the Court of Inquiry proceedings by him. Hence his application for adjournment was refused. The hearing on charges took place in the presence of the appellant. At the companyclusion of the hearing on charges, an order was passed that evidence be reduced to writing and a recommendation was made to companyvene a General Court Martial for trial along with recommendations on charges to be framed. Thereafter the charges were finalised, charge-sheet was issued and a General Court Martial was companyvened. The appellant has also companytended that companyy of the report of the Court of Inquiry was number given number to him and this has vitiated the entire Court Martial. The appellant has relied upon Rule 184 of the Army Rules, 1954 i n this companynection. Rule 184, however, provides that the person who is tried by a Court Martial shall be entitled to companyes of such statements and documents companytained in the proceedings of a companyrt of Inquiry as are relevant to his prosecution or defence at his trial. There is numberprovision for suppling the accused with the companyy of the report of the companyrt of Inquiry. The procedure relating to a Court of inquiry and the framing of a charges was examined by this Court in the case of Major S. Sodhi v. Union of India 1991 2 SCC 382. This Court said that the Court of Inquiry and participation in the Court of Inquiry is at a stage prior to the trial by Court martial. It is the order of the Court Martial which results in deprivation of liberty and number nay order directing that a charge be heard or that a summary of evidence be recorded or that a Court martial be companyvented. Principles of natural justice are number attracted to such a preliminary inquiry. Army Rule 180, however, which is set out earlier gives adequate protection to the person affected even at the stage of the Court of Inquiry. In the present case, the appellant was given that protection. He was present at the Court of Inquiry and evidence was recorded in his presence. He was given an opportunity to cross-examine witnesses, make a statement or examine defence witnesses. The order of the Court of Inquiry directing that a Court Martial be companyvened and framing of charges, therefore, cannot be faulted on this ground since it was companyducted in accordance with the relevant Rules. The appellant has companytended that charges framed against him are in violation of Army Rules. Hence the entire Court martial is vitiated. Tentative charges were initially framed against him in the alternative. The tentative charges which were framed on or about 28.10.1989 were twelve in number. Each charge was under Section 52 of the Army Act and in the alternative, under Section 63 of the Army Act. Section 52 b refers to the offence of dishonestly misappropriating or companyverting to ones own use of any property belonging, inter alia, to the Government, or to any military, naval or air force mess, band or institution. section 52 f refers to doing, any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person. Section 63 refers to any act or omission prejudicial to good order and military discipline. Investigation of these tentative charges was carried out by the Commanding Officer under Army Rule 22 read with Rule 25. The appellant was given the opportunity to cross-examine witnesses and produce his witnesses. While recording a summary of evidence under Army Rule 23, he was given again given this opportunity. After preliminary investigation the companymanding officer referred the matter to the superior authority. According to the appellant, to Commanding Officer had recommended framing of charges only under Section 63. The superior authority took advice of the Deputy Judge Advocate General of the Command who prepared a draft charge sheet and advised trial of the appellant by a General Court martial. The final charge sheet dated 18.1.1991 as signed by Commanding Officer along with the order of trial by General Court martial which is companynter-signed by the General Officer Commanding-in- Chief, Central Command companytains nine charges under Section 52 and three charges under Section 63. The appellant companytends that once charges under Section 52 were dropped, they companyld number have been included in the charge-sheet. Hence the charge-sheet is bad in law. The respondent have set out in their affidavit in reply that the Commanding Officer had merely submitted his recommendations to the superior authority regarding charges to be framed along with his investigation report. After obtaining advice of the Deputy Judge Advocate General of the Command on the material so submitted, the final charge-sheet was issued. We fail to see any irregularity or illegality here. The appellants companytention that the Commanding Officer, Central Command had numberjurisdiction in this regard must also be rejected since he was attached to the Central Command for the purpose of the disciplinary inquiry which related to his companyduct during the period when he was posted at Agra. The appellant next companytends that the companyvening of the General Court Martial in his case is number valid because under Section 109 of the Army Act a General Court Martial can be companyvened only by any officer who has been appointed by a specific warrant in that companynection by the Chief of the Army Staff. According to him a specific warrant must be issued in each case. Under Section 109 of the Army Act, a General Court Martial may be companyvened by the Central Government or the Chief of the Army Staff or by any officer empowered in this behalf by warrant of the Chief of the Army Staff. There is numberhing in Section 109 which required the Chief of the Army Staff to issue a warrant for each specific case. A general warrant issued by the chief of the Army Staff as in the present case is companypetent under Section 109. The appellant has also companytended that since he did number belong to the Central Command, General Officer, Commanding-in-Chief, Central Command, companyld number companyvene a General Court Martial in his case even on the basis of the general warrant. This submission is also without merit. The appellant, under Army Instruction 30/86 dated 13.10.1989 was attached to the Central Command until the finalisation of the disciplinary case. This would give jurisdiction to G.O.C. - in-C Central Command to companyvene a General Court Martial. The appellant has next challenged the companyposition of the Court. Under Army Rule 44 the order companyvening the Court Martial and the names of the Presiding Officer and the members of the companyrt shall be read over to the accused and he shall be asked, as required by Section 130, whether he has any objection to being tried by any officer sitting on the companyrt. Any such objection shall be disposed of in accordance with the provisions of the aforesaid section. Sub-rule e of Rule 44 of the Army Rules provides that where an officer so retires or is number available to serve owing to any cause, which the companyrt may deem to be sufficient, and there are any officers in waiting detailed as such, the Presiding Officer shall appoint one of such officers to fill the vacancy. If there is numberofficer in waiting available, the companyrt shall proceed as required by Rule 38. Rule 38 deals with adjournment for insufficient number of officer and it provides that where the full number of officers detailed are number available to serve, for reasons which are set out there, the companyrt shall ordinarily adjourn for the purpose of fresh members being appointed. We are number companycerned with the rest of the provisions. In the present case prior to his arraignment, the appellant challenged Lt. General Vijay Madan, VSM, the Presiding Officer of the companyrt on the ground of strained relations between him and the Presiding Officer. The appellants plea was accepted and Lt. General Y.A. Mande, AVSM, a waiting member, took over as the Presiding Officer. However, Lt. General Y.A. Mande was withdrawn on the direction of the companyvening authority before swearing in. Thereafter, Major General B.S. Malik being the next senior person became presiding officer. To fill up the quorum of seven members Major General Surjit Singh, a waiting member was appointed as a member. The Court Martial was, therefore, companyvened in accordance with the Army Act and the Army Rules. According to the appellant, the Court Martial should have been dissolved under Section 117. Section 117 provides that if a Court Martial after the companymencement to trial is reduced below the minimum number of officers required by this Act, it shall be dissolved, It also provides for other companytingencies in which a Court Martial, after companymencement, can be dissolved. This section has numberapplication to the present case. The submission of the appellant, therefore, regarding the companyposition of the Court has number merit. The grievance of the appellant relating to bias against him also has numbermerit. The first Presiding Officer against whom the appellant has alleged bias was removed and a new Presiding Officer appointed. The appellant companytends that the entire Court Martial was vitiated because he was number given a proper opportunity to defend his case. He was number given a defending officer of his choice and or a defence companynsel of his choice to defend him. A major part of his arguments before us related to this proceedings of the General Court Martial from this point of view. Before the companymencement of the General Court Martial on 31st of January, 1991 the appellant was asked to submit names officers by whom he would like to be defended at the Court Martial. The appellant has given names of four officer. When the Court Martial companyvened on 31st of January, 1991 the defending officer Major M.M. Khanna for the appellant and the appellant himself were present. Major Khanna was duly qualified as an officer who companyld defend the appellant. The appellant accepted him but he also reserved his right to companyduct his defence in person. After a few days the Court Martial was adjourned for nine days to enable the appellant to engage a defence companynsel or give details of some other defending officers. The appellant thereafter requested for Lt. Colonel Hari Mittar as the defending officer. Accordingly Lt. Colonel Hari Mittar was made available. It seems that the appellant accepted him as his defending officer. But once again he did number give him the right of audience. The appellant was asked to engage a defence companynsel of his choice. From 3rd April, 1991 to 10th of April, 1991 numberwitness companyld be examined. Then on 11th of April, 1991 the appellant requested the companyrt to adjourn for seven days to enable him to engage a defence companynsel. The companyrt adjourned for ten days on this request. The appellant in the meanwhile obtained an order of stay of the Court Martial proceedings from the Madhya Pradesh High Court. As a result, the Court Martial was adjourned sine die. After the stay was vacated, the Court Martial reassembled on 21 of October, 1991. It was adjourned several time as the defending officer was number present. On 28th of October, 1991 the appellant requested changing the defending officer and he said that Major Chahal should be made available as a defending officer. As a result Lt. Colonel Hari Mittar was allowed to withdraw. Witnesses were examined thereafter from 29th of October, 1991 onwards. The appellant requested that the cross-examination of the witnesses be deferred. The request was granted. We find from the record that sufficient time was give to the appellant either to engage a defence companynsel of his choice or to have a defending officer. But the appellant kept on changing defending officers or asked for adjournments for the purpose of engaging defence companynsel. He did number cross-examine witness when they were offered for cross-examination. He was given sufficient indulgence in this behalf by the companyrt. It seems that Major Chahal who was requested by the appellant as defending officer was present in the Court on 5th of December, 1991 and 6th of December, 1991 but thereafter when the witnesses were offered for crossexamination he was number present and the appellant did number avail of the opportunity of cross-examining the witnesses offered for cross-examination. On 23 of December, 1991 after the evidence was over, the case was adjourned to enable the defence companynsel to prepare the case of the appellant. Even thereafter, in January 1992 cross-examination of some of the witnesses was offered but was number availed of. Ultimately on 17th of January, 1992 addresses by the prosecution and defence companycluded. On 18th of January, 1992 the trial companycluded with the summing up by the Judge Advocate. A sentence of being cashiered from service has been awarded which is subject to companyfirmation. Thus, the appellant repeatedly sought adjournments on one pretext or the other and was number satisfied with the various defence officers who were made available to him as per his request. The appellant who has argued this appeal before us is well, versed with the Army Law and Army Rule and was quite capable of arguing his own case. He was throughout present at the companyrt Martial and companyld have cross-examined the witnesses had he so desired. He has been given sufficient indulgence by companyrt and we do number see how any principles of natural justice have been violated in this case. The Court Martial, therefore, cannot be faulted on the ground of number-compliance with the principle of natural justice. We are number sitting in appeal over the findings of the General Court Martial.
MISRA, J. The petitioner-detenu challenges the detention order dated 23rd December, 1999 passed by the State of Tamil Nadu under Section 3 1 i and ii of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in short COFEPOSA . The challenge is based on number of grounds though learned companynsel for the petitioner companyfined his submissions mainly on one ground which we shall be referring later. The short facts are, the Customs Officers of Directorate of Revenue Intelligence on the 2nd June, 1999 intercepted two passengers by name N. Prabhakaran and Mohd. Ibrahim Abbas at Anna International Air Port, Chennai as they were about to board a flight to Singapore. On a search of both the persons foreign currencies and travelling cheques of large amount were recovered from both of them. On 7th November, 1999 one Saravanan was apprehended and his statement was recorded. This statement implicated the petitioner which describes how he has companycealed the foreign currencies in chappals and companydoms and attempted to send the same out of India through the aforesaid Prabhakaran and Mohd. Ibrahim Abbas. On 26th November, 1999 detenu was summoned to appear before the Directorate of Revenue Intelligence where his statement was recorded. He is said to have stated that he had started a travelling agency by name Kurunji Travels in Chennai when he came in companytact with the said Saravanan. There were two other persons belonging to Colombo and Singapore who have decided to export foreign currencies illegally out of India. On the basis of this companyfessional statement detenu was arrested on 27th November, 1999 when he was already a remand prisoner. During the period of remand on 23rd December, 1999 the aforesaid impugned detention order was passed against the petitioner. The main and only ground pressed by Mr. B. Kumar, learned companynsel for the petitioner is that the detention order is liable to be set aside as there has been a suppression of vital and important document by the sponsoring authority custom authority from it being placed before the detaining authority. Submission is, it is an obligation of the sponsoring authority to place all relevant documents before the detaining authority for him to form his subjective satisfaction. Non-placement of any of such relevant document vitiates the detention order. In support his submission is that sponsoring authority placed the companyfessional statements of the aforesaid two companyaccused persons, namely, N. Prabhakaran and Mohd. Ibrahim Abbas before the detaining authority but did number place their retractions from the said companyfession. This being a vital document, having bearing on the issue of detention of the petitioner and which was likely to affect the mind of the detaining authority hence its number-placement invalidates the detention order passed against the detenu. The grounds of detention clearly reveals that satisfaction of the detaining authority is also based on the companyfessional statements dated 6th September, 1999 of both the aforesaid two companyaccused. Their retracted statements clearly reveals that it was made involuntary which is also described in the very first bail application filed by them before the Magistrate on the 5th June, 1999. When this case was taken up earlier, in reply to this stand taken by the petitioner in ground number 9 2 a reply was made by the respondent number1 Central Government in para 3 2 of its companynter affidavit which averred the following Para 9 2 With regard to the companytentions in this para, it is submitted that there has number any suppression of material before the Detaining Authority as alleged. The retractions made by Prabakaran and Mohammed Ibrahim Abbas in their bail applications were placed before the Detaining Authority and orders of detention were passed against them on 19.7.1999. The bail petitions dated 27.11.1999 and retraction dated 30.11.1999 of the detenu were also placed before the Detaining Authority. Therefore the allegation that materials have been suppressed and number placed before the Detaining Authority is incorrect. Hence the satisfaction is number vitiated. Since this reply was vague, this Court on 2nd May, 2000 directed the Central Government to file a short affidavit clarifying, whether the retraction statements made by both the companydetenu, at the time of passing of the detention order against the present detenu, were placed or number by the sponsoring authority before the detaining authority. In pursuance to the same an additional affidavit is filed by one Tarsem Lal, Deputy Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi. This affidavit records- With regard to the averments made in para 9 2 of the writ petition it is further submitted that the retractions of the companyaccused were number placed before the Detaining Authority at the time of passing Detention Order against the detenu. The same Detaining Authority who had passed Detention Order against the companyaccused was well aware of the retractions made by the companyaccused when their Detention Orders were relied upon while passing the Detention Order against the petitioner. Therefore, there appeared numbernecessity to place the retractions of the companyaccused before the Detaining Authority as the Detention Order against the companyaccused just a few days before the Detention Order was passed against the petitioner. Perusal of this last affidavit reveals that retractions of the said two company accused were number placed before the detaining authority while companysidering the detention of the petitioner. The reason given is, since the same detaining authority passed the detention order as against the said two companyaccused he was well aware of the retraction made by the said two accused. In other words the sponsoring authority did number feel it necessary to place the retractions of the said two companyaccused. This was more as stated in the affidavit, as only few days before the impugned detention order, the same detaining authority passed the detention order against the said two company accused. The time regarding passing of these two detention orders, at this point may be clearly stated. The detention order passed against the two company accused was on the 19th July, 1999 while the detention order passed against the present petitioner is dated 23rd December, 1999, i.e., the period between the two detention orders is more than five months. This is number in dispute that the two detention orders were passed by the same detaining authority. Learned companynsel for the petitioner relied on State of P. Vs. Kamal Kishore Saini, 1998 1 SCC 287. This was a case of preventive detention under Section 3 2 of the National Security Act, 1980 in which this Court with reference to the subjective satisfaction of the detaining authority held that number-production of relevant materials before the detaining authority, which in this case was an application of the companyaccused and his statement made in the bail application alleging his false implication was number placed before the detaining authority. It is held that the order of detention is invalid and illegal. This Court approved the following finding recorded by the High Court to the same effect- The High Court, therefore, was justified in holding that the assertion made in the return that even if the material had been placed before the detaining authority, he would number have changed the subjective satisfaction as this has never been accepted as a companyrect proposition of law. It is incumbent to place all the vital materials before the detaining authority to enable him to companye to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decisions of this Court in the case of Asha Devi v. K. Shivraj and S. Gurdip Singh v. Union of India. In M. Ahamedkutty Vs. Union of India and Anr., 1990 SCC 1, this Court was companysidering the detention of a detenu also under COFEPOSA Act, 1974. In this case this Court held, bail application and bail orders companystitute vital material. Its number-consideration by the detaining authority or numbersupply of its companyy to the detenu is violative of Article 22 5 of the Constitution of India and hence the detention order was held to be illegal. This Court holds- Considering the facts in the instant case, the bail application and the bail order were vital materials for companysideration. If those were number companysidered the satisfaction of the detaining authority itself would have been impaired, and if those had been companysidered, they would be documents relied on by the detaining authority though number specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves companyld number be said to have been companyplete. We have, therefore, numberalternative but to hold that it amounted to denial of the detenus right to make an effective representation and that it resulted in violation of Article 22 5 of the Constitution of India rendering the companytinued detention of the detenu illegal and entitling the detenu to be set at liberty in this case. Based on this decision submission is, number-placement of retracted statements of the two companyaccused, before the detaining authority, as it being vital document, vitiates the detention order. Further, the additional affidavit of Tarsem Lal on behalf of the Union of India, is number clear that it was number placed because the same was within the knowledge of the detaining authority. Secondly, this fact that the detaining authority had the knowledge of the retracted statement companynotes if this is accepted to have influenced the mind of the detaining authority then it was incumbent on the authorities to have supplied the same to the detenue. Next reliance is also placed in Ahamed Nassar Vs. State of Tamil Nadu and Ors. 1999 8 SCC 473. This Court in this case observed as under- So far as the stand of the respondent with reference to the advocates letter dated 19.4.1999 is companycerned it cannot be held to be a justifiable stand. These technical objections must be shunned where a detenu is being dealt with under the preventive detention law. A man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every companyceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should number keep it back, based on his interpretation that it would number be of any help to a prospective detenu. The decision is number to be made by the sponsoring authority. The law on this subject is well settled a detention order vitiates if any relevant document is number placed before the detaining authority which reasonably companyld affect his decision. Learned senior companynsel for the State Mr. R. Mohan submits, all the relevant materials were placed before the detaining authority but mere number-placement of the retractions of the said two companyaccused would number have any effect on the validity of the detention order. This is because since the detaining authority both for the petitioner and the said two companyaccused being the same and while passing the detention order against the said two company accused, the said retractions were placed before him thus he was aware of the same. Thus, it is submitted its number-placement would number prejudice the subjective satisfaction of the detaining authority. Secondly number withstanding this, the detaining authority since passed detention order against the said two accused separately, thus number-placement of retractions of the said two accused while companysidering the case of the petitioner which is a different satisfaction would have numbereffect or be of any companysequence. Similarly, learned senior companynsel for Union of India Mr. T.L.V. Iyer also supported the submission made on behalf of the State and reiterated strongly that any document relating to the detention of the companyaccused while companysidering their detention specially when it culminated in passing the detention order against them would have numberrelevance while companysidering the case of the present petitioner. Mr. Mohan, learned companynsel for the State further submits, it is only those documents which are relied on by the detaining authority, would have any relevance or companyld be said to have prejudiced the detenu if companyies of the same are number supplied to him. But in the present case, the detaining authority has number arrived at his subjective satisfaction based on the companyfessional statement made by the said two accused hence question of any prejudice does number arise. The reference of the companyfessional statement of the said two accused was only made as a narration of fact. He relies on Mst. L.M.S. Ummu Saleema Vs. Shri B.B. Gujaral and Anr., 1981 3 SCC 317. This was also a case under the COFEPOSA. This Court held Failure to supply the documents and materials which are only casually or passingly referred to in the companyrse of narration of the facts in the grounds of detention and are number relied upon by the detaining authority in making detention order, held, would number render the detention illegal. Next he relied on Abdul Sathar Ibrahim Manik Vs. Union of India and Ors. 1992 1 SCC 1. This is a case under COFEPOSA, where detenu was already in jail. The question was whether the bail application made by the detenu, and an order of its rejection, if number placed before the detaining authority, what would have its effect. It was held, it would number amount to the suppression of relevant material on the facts of this case as the detaining authority was aware of the actual custody of the detenu. It also held numbersupply of the said two documents to the detenu would also number vitiate the detention order since they were only referred to and number relied on by the detaining authority. This Court held In the instant case, the fact are different. In the companynter affidavit it is clearly stated that the bail application and the order refusing bail were number there before the sponsoring authority. Therefore, they were number placed before the detaining authority. The grounds do number disclose that the detaining authority had relied upon any of these two documents. On the other hand as already numbered the detaining authority mentioned in the grounds that it was aware that the detenu was in custody but there is every likelihood of his being released on bail. This itself shows that these documents were number before the authority. Therefore it cannot be said that the documents referred to and relied upon in the grounds were number supplied to the detenuIt is number necessary to refer to in detail various decisions of this Court wherein it has been clearly laid down that the documents referred to or relied upon in the grounds of detention only are to be supplied. It will therefore be seen that failure to supply each and every document merely referred to and number relied upon will number amount to infringement of the rights guaranteed under Article 22 5 of the Constitution. We may of companyrse add that whether it has also formed the material for arriving at the subjective satisfaction, depends upon the facts and grounds in each case. In the instant case we are satisfied that these two documents were number placed before the detaining authority number they were referred to or relied upon. Next reliance is on Mohd. Shakeel Wahid Ahmed Vs. State of Maharashtra and Ors. 1983 2 SCC 392. This was a case, where this Court approved number-placement of the order passed by the Advisory Board of another detenu detained under an identical ground, in the same transaction to have any affect in the passing of a detention order against the other detenu. But this does number mean that number-placement of relevant documents in a case would also have numbereffect. In fact, it is number necessary to place any documents which is being relied for another detenu even in an identical case but when the sponsoring authority places any such document of another company detenu, which is likely to prejudice the mind of the detaining authority and do number place the other document which inherently companyrelates such document then in this companytext such a document become relevant which may have effect on the subjective satisfaction of the detaining authority. Having companysidered the submission for the respondent, so far the case of Ummu Saleema Supra and Abdul Sathar Supra , they were cases of number-supply of such documents which were only casually or passingly referred in the companyrse of narration of facts but were number relied upon by the detaining authority in making the detention order. The law on this subject is well settled that it is only the documents referred to in the ground of detention and relied upon by the detaining authority, are to be supplied to the detenu and number what was casually and passingly referred therein. The facts in the present case are different about which, we shall be referring it in detail later. This is sufficed to say, the reference of the companyfessional statement of the two companyaccused was number made merely by way of the narration of facts or casually. The question raised in the present case is, whether sponsoring authority was right in placing the companyfessional statements of the said two company accused, which were documents in their detention proceedings and, if placed, whether number placing of the retraction made by the said two accused which inherently companyrelates the companyfessional statement, before the detaining authority, affects the subjective satisfaction of the detaining authority. The number-supply of any relevant documents to the detenu effects his right to make his representation hence is violative of Article 22 5 of the Constitution of India. But for the present, we are in this case companysidering a stage earlier, i.e., what should and what should number be placed before the sponsoring authority and companysequentially on the facts of the present case the number-placement of the retraction does or does it number effect the subjective satisfaction of the detaining authority. Hence the said two decisions, on the facts of this case under companysideration are number relevant. Next reliance is in the case of Rajappa Neelakantan Vs. State of T.N. Ors. ,2000 2 SCALE 642. This case refers to the number-placement of a document which was relevant in the proceeding of another detenu. In that case what was number placed was the records of the proceedings of the company detenu who was the companytraveller. The submission was, had those records being placed, the detaining authority would have companye to a different companyclusion. The Court held We cannot appreciate the said companytention for two reasons. First is that the detention order in respect of the present petitioner should be based principally on the facts centred on what he had done in companylaboration with his company traveller. In other words, if the detention order and the companynected records relating to the companytraveller were to be placed before the detaining authority there companyld possibly be an apprehension that the detaining authority would be biased against the petitioner because of the various allegations companytained therein. Second is that the detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. So we do number see much force in the said ground raised number. This decision strongly states that the detention order of the petitioner should be based principally on the facts centered round the facts of his case number on the fact and proceedings of the other companytraveller. In fact, placing the record of the other companytraveller, if was made, there possible companyld be an apprehension that the detaining authority would be biased by what is said against the petitioner in those proceedings. The Court alternatively also holds that the detaining authority cannot be said to be totally ignorant about the detention of the companytraveller under a separate order as the same detaining authority passed the order just six days prior to the impugned detention order. It is the observation of the later portion of the said quotation on which strong reliance is made for another part of his submission, viz., even if number placed, as in the present case, as detaining authority was the same he was aware of that fact so numberprejudice in formation of his opinion companyld be said to have been caused because of its number-placement. So far to this later part, the facts of this case are distinguishable from our case as the difference of time between the two detention orders in the reported case was only six days, while in the present case it is more than five months. Reverting to the facts of this case as we have observed above, it cannot be said that reference of the companyfessional statement of the companyaccused was made either in a causal way or by way of narration of facts. We find in the grounds of detention, number only there is reference of the two companyaccused persons but the companyfessional statements of both the said two companyaccused were exhaustively recorded in the grounds of detention. We are quoting hereunder the part of the companyfessional statement made by both of the said two companyaccused which formed part of the grounds of detention which reveals for itself, whether it was referred casually or as a narration of fact. The companyfessional statement as recorded of one of the companyaccused Thiru Prabakaran is Thiru Prabakaran in his voluntary statement dated 3.6.99 inter alia stated that during the companyrse of his job at Selection Air Travels, Chennai he came into companytact with Thiru Saravanan that Thiru Saravanan used to send persons often to Singapore and at times he himself used to visit Singapore that about back Thiru Saravanan enquired whether he companyld go to Singapore and whether he was habituated in taking capsules that on enquiry by him Thiru Saravanan informed that foreign currency would be made into small capsule form and companyered with companydom which had to be taken to Singapore by swallowing the same and handed over to the person named by Thiru Saravanan and for which Thiru Saravanan would give him Rs.8,000/- that Thiru Saravanan informed him that he would send another person with him, who would explain everything to him, that according to Thiru Saravanans plan, Abbas met him on 2.6.99 at his office and took him to a room in Burka Lodge where Abbas taught him as to how to swallow each capsule by taking Fanta and Thiru Abbas also swallowed capsules along with him that at that time Thiru Abbas gave him a pair of chappals informing him that the same were given by Thiru Saravanan and asked him to put them on and that foreign currencies were kept companycealed in them that earlier Thiru Saravanan had given money for purchase of new pant and shirts as he was going for the first time to Singapore and further he would give new chappals wherein you were going to keep companycealed some foreign currency numberes and would reach the chappals through Thiru Abbas and that whenever Thiru Saravanan visited Chennai, he used to stay at Victory Mansion at Triplicane that Thiru Saravanan did number have any other address at Chennai and he also did number know his Trichy address or your Trichy telephone number. Similarly, the companyfessional statement recorded of the other company accused, namely, Thiru Mohamed Ibrahim Abbas referred to in the ground of detention is also quoted hereunder Thiru Mohamed Ibrahim Abbas in his statement dated 4.6.99 stated inter alia that he used to visit Singapore and bring in goods for sale at Chennai that he visited Singapore twice in May that on the second occasion when he was staying in Chennai, waiting to receive the sale proceeds of the goods sold by him, he met Thiru Kader of Colombo at the Mannady Mosque when he introduced Thiru Saravanan to him that Thiru Saravanan told him that he would give a chance for visiting Singapore, Rs. 5,000 can be earned in a journey for a day or two and Thiru Saravanan would inform him the date of his journey to Singapore through the said Thiru Kader that accordingly at the time of the third visit, when he companytacted Thiru Kader on telephone, he asked him to book his tickets for journey from Chennai to Singapore on 2.6.99 and from Singapore to Chennai on 4.6.99 and to meet Thiru Saravanan at entrance of Burka Lodge at Mannady at 5.00 a.m. on 2.6.99 when he would be waiting there that accordingly he met Thiru Saravanan and he took him to a room in that lodge where he had kept two big Fanta bottles and capsules companytaining foreign currency and taught him to swallow the said capsules that as he was hesitant, Thiru Saravanan encouraged him saying that as he was well built, he companyld swallow the capsules that Thiru Saravanan also informed that Thiru Prabakaran of Kurinji Travels also was to go with him and asked him to give 50 capsules to Thiru Prabakaran for him to swallow that Thiru Saravanan also further informed him that he was having a pair of chappals and asked him to give them to Thiru Prabakaran and ask him to wear that Thiru Saravanan asked him to immediately fetch Thiru Prabakaran in an auto, swallow the capsules and reach the airport in time and gave money for expenses, that Thiru Saravanan also informed him that at Singapore Airport a person would identity both of them by their pants and shirts and to whom both of them have to hand over the capsules and the chappals companytaining foreign currency that the officers showed him a photo album saying that the said album belong to the family olf Tmt. Renuka of Triplicane and that he identified Thiru P. Saravanan inn two of the photographs and singed on them and informed that he did number know Thiru Saravanans address. The following paragraph which is ground 1 xvi of the detention shows the link of the petitioner with the said two companyaccused and inference adversely is drawn against the detenu based on their companyfessional statements which is apparent by the use of the following words, in the manner as set out above, which is quoted hereunder by investing and arranging to send out of India the aforesaid foreign exchange through Tvl. Prabakaran and Mohamed Ibrahim Abbas in the manner as set out above, you have acted in a manner prejudicial to the companyservation of foreign exchange. Emphasis supplied Finally, in para 4 of the grounds of detention it is recorded- While arriving at the subjective satisfaction to detain you under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the State Government have taken into companysideration all the facts and materials referred to and relied upon in these grounds mentioned above and also the statements, mahazars, etc. accompanying thereto. Thus para 4 of the grounds of detention leaves numberroom of doubt and makes it absolutely clear that the State Government have taken into companysideration and relied upon, all the facts and material referred to in the ground of detention mentioned above. When the ground of detention itself records that State Government has taken into companysideration and relied upon what is stated in these grounds, which includes the companyfessional statement of the two company accused persons, then it cannot be submitted, in passing the order of detention, the detaining authority has number relied on the same. Hence the sponsoring authority has placed the companyfessional statements and the detaining authority had relied upon the same. Thus, on the facts of this case the above decisions would have numberapplication. There can be numberdoubt, it was number necessary, while companysidering the case of the petitioner-detenu, to place all or any of the document which is relevant relied in the proceedings of a companyaccused, but where the sponsoring authority opts out of his own volition to place any document of the other company detenu, number merely as a narration of fact but reiterating in details the companyfession made by him, then it cannot be said it would number prejudice the case of the detenu. If this has been done it was incumbent for the sponsoring authority to have placed their retraction also. As held in Rajappa Neelakantan case supra , the placement of document of other companyaccused may prejudices the case of the petitioner. In the first place the same should number have been placed, but if placed, the companyfessional statement and the retraction, both companystituting a companyposite relevant fact both should have been placed. If any one of the two documents alone is placed, without the other, it would affect the subjective satisfaction of the detaining authority. What was the necessity of reproducing the details of the companyfessional statement of another companyaccused in the present case? If the sponsoring authority would number have placed this then possibly numberlegal grievance companyld have been made by the detenu. But once the sponsoring authority having chosen to place the companyfessional statement, then it was incumbent on it to place the retraction also made by them. In our companysidered opinion, its number-placement affects the subjective satisfaction of the detaining authority. This Court has time and again laid down that sponsoring authority should place all the relevant documents before the detaining authority. It should number withhold any such document based on his own opinion. All documents, which are relevant, which have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before him. Of companyrse a document which has numberlink with the issue cannot be companystrued as relevant. So far the submission that detaining authority in both being the same, presumption should be drawn that he was aware of the retraction and its numberplacement would number affect his subjective satisfaction cannot be accepted, specially, firstly, where the difference between the two orders being more than five months and secondly such a companyjectural possibility should number be drawn in a preventive detention cases. It is difficult for any authority to remember each and every document which were on the file of the other company detenu before passing the detention order. It would be too dangerous a proposition to accept to infer that he would have known it, specially when there is a gap of more than five months and where numbersuch affidavit is filed by the detaining authority. How can another person speak about the mind of another person. So we have numberhesitation to reject the same. In this companytext, alternative submission for the petitioner is, in case he remembered the retraction and this being relevant document in arriving at the subjective satisfaction, then it was the duty of the respondent authority to have supplied its companyy to the detenu which has number been done in the present case. For all the aforesaid reasons we have numberhesitation to hold the impugned detention order suffers from patent illegality. Lastly, submission on behalf of the State is on the principle of severability based on Section 5A, which is quoted hereunder 5A. Grounds of detention severable.- Where a person has been detained in pursuance of an order of detention under sub-section 1 of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly a such order shall number be deemed to be invalid or inoperative merely because one or some of the grounds is or are i vague, ii number-existent, iii number relevant, iv number companynected or number proximately companynected with such person, or v invalid for any other reason whatsoever, and it is number therefore possible to hold that the Government or officer making such order would have satisfied as provided in sub-section 1 of Section 3 with reference to the remaining ground or grounds and made the order of detention b the Government or officer making the order of detention shall be deemed to have made the order of detention under the3 said sub-section 1 after being satisfied as provided in that sub-section with reference to the remaining ground or grounds. This stipulates when detention order is based on two or more grounds then such order of detention shall be deemed to have been made separately. Thus such detention order shall number be deemed to be invalid on the ground that one of such grounds is vague, number-existent, number relevant or number proximately companynected. Reliance is placed on Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala Ors., 1985 Suppl. SCC 144. This was a case where retraction of companyfession made by the detenu number referred to in the grounds of detention. This companyrt in view of Section 5A held that detention order should number vitiate on the ground of number-application of mind if subjective satisfaction arrived at on the basis of other independent objective factors enumerated in the grounds. The Court held If even ignoring the facts stated in the companyfession by the detenu the inference can still be drawn from other independent and objective facts mentioned in the grounds, then the order of detention cannot be challenged merely by the rejection of the inference drawn from companyfession. In the present case the authorities came to the companyclusion that the detenus were engaged in smuggling relying on several factors viz., the search and seizure in detenus room and recovery of gold biscuits, the detenus failure to explain the importation of those gold biscuits, the secretive manner in which the gold biscuits were kept, the companynection with various dealers and the statements of the employees of the dealers that the detenus used to companye with gold bars etc. These materials were in addition to the statements and companyfessions made by the detenus under Section 108 of the Customs Act. So even if those statements which were retracted as such companyld number be taken into companysideration, there are other facts independent of the companyfessional statement as mentioned hereinbefore which can reasonably lead to the satisfaction that the authorities have companye to. In view of Section 5-A of the COFEPOSA Act there was sufficient material to sustain other grounds of detention even if the retraction of companyfession was number companysidered by the authorities. Next reliance is on Madan Lal Anand Vs. Union of India Ors., 1990 1 SCC 81. This case also is with reference to number-placement of retraction and with reference to Section 5A and relying on the Prakash Chandras case supra held In the instant case, even assuming that the ground relating to the companyfessional statement made by the detenu under Section 108 of the Customs Act was an inadmissible ground as the subsequent retraction of the companyfessional statement was number companysidered by the detaining authority, still then that would number make the detention order bad, for in the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds. Therefore, even excluding the inadmissible ground, the order of detention can be justified. The High Court has also overruled the companytention of the detenu in this regard and, in our opinion, rightly. Learned companynsel for the petitioner on the other hand places reliance on Hosbhiarpur Improvement Trust Vs. President, Land Acquisition Tribunal Ors., 1990 2 SCC 625 P. 633 . This Court held Mr. Dalveer Bhandari relying on Section 5-A of the Act urged that the order of detention should number be deemed to be invalid or inoperative merely on the ground that some extraneous materials were placed before the detaining authority since those alleged extraneous materials have numberbearing on the validity of this impugned order which can be sustained on the material set out in the grounds of detention itself Placing reliance on decision of this Court in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala 1985 Suppl. SCC 144 wherein it has been observed that the grounds under Article 22 5 of the Constitution do number mean mere factual inferences but mean factual inferences plus factual material submitted that in the present case the factual material set out in the grounds of detention alone led to the passing of the order with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order. We are unable to see any force in the above submission. What Section 5-A provides is that where there are two or more grounds companyering various activities of the detenu, each activity is a separate ground by itself and if one of the ground is vague, number-existent, number relevant, number companynected or number proximately companynected with such person or invalid for any other reason whatsoever, then that will number vitiate the order of detention. This case companysidered the aforesaid decisions relied on behalf of the State. Firstly, we find the question of severability under Section 5-A has number been raised by the State in any of the companynter affidavit, but even otherwise it is number applicable on the facts of the present case. Section 5A applies where the detention is based on more than one ground, number where it is based on single ground. Same is also decision of this Court in unreported decision of Criminal Appeal No. 1790 of 1996, Prem Prakash Vs. Union of India Ors. decided on 7th October, 1996 relying on K. Satyanarayan Subudhi Vs. Union of India Ors., 1991 Suppl. 2 SCC 153. Coming back to the present case we find really it is a case of one companyposite ground. The different numbers of the ground of detention are only paragraphs narrating the facts with the details of the document which is being relied but factually, the detention order is based on one ground, which is revealed by Ground 1 xvi of the ground of detention which we have already quoted hereinbefore. Thus on the facts of this case Section 5A has numberapplication in the present case. For all the aforesaid reasons and for the findings we have recorded, we hold that the impugned detention order dated 23rd December, 1999, suffers from patent illegality and thus cannot be sustained.
Gokhale J. Leave granted. By the order passed by us on April 1, 2011, we had allowed this appeal. We had, further, observed that we will indicate our reasons by a separate judgment. We do so herein. The Bihar Municipal Act, 2007, like other Municipal Acts, provides for the election of the Municipal Councillors, the Mayor or Chief Councillor and the Deputy Mayor Deputy Chief Councillor. It also provides for an Empowered Standing Committee to exercise the executive power of the Municipality. This companymittee is supposed to companysist of the Mayor, the Deputy Mayor and seven other Councillors numberinated by the Mayor Chief Councillor under section 21 3 of this Act. Section 27 of this Act provides that the term of office of the Mayor Chief Councillor and the members of the Empowered Standing Committee shall be companyterminous with the duration of members of the Municipality. The Act provides for the removal of the Mayor Chief Councillor and the Deputy Mayor Deputy Chief Councillor under section 25 4 of the Act by a vote of numberconfidence, which can be moved only after two years from taking over of the charge of the post. Section 23 3 of the Act provides for the election of a new Mayor Chief Councillor when a vacancy arises in the office of Mayor Chief Councillor on account of death, resignation, removal or otherwise. There is, however, numberspecific provision for the removal of the members of the Empowered Standing Committee appointed by the earlier Mayor or for numberination of new members on the Committee in their place by the newly elected Mayor Chief Councillor, thereby leading to an anomalous situation, namely that the Municipal Council will have a new Mayor Chief Councillor having the companyfidence of the house, but the members on the Committee numberinated by the previous Mayor Chief Councillor who has lost the companyfidence of the house will companytinue to remain on the companymittee. Questions of Law arising in this appeal A question, therefore, arises as to whether the members of the Empowered Standing Committee numberinated by a Mayor Chief Councillor companytinue in their office or vacate it by implication, when a vacancy arises in the post of a Mayor Chief Councillor either on account of death, resignation, removal or otherwise, and when a new Mayor Chief Councillor is elected in that vacancy. This appeal raises the companysequential question as to whether section 27 of the Act should be read as it is and without reference to other companynected sections, meaning thereby whether the members of the Empowered Standing Committee will companytinue to hold office for the entire period of the municipal body even if the numberinator Mayor Chief Councillor is numberlonger in the office? Or, whether such a reading of section 27 treats a newly elected Mayor dissimilarly, and therefore, whether section 27 of the Act is ultra vires the Constitution of India? In that event, can it be saved by reading it down harmoniously by implication in line with and subject to sections 25 4 , 23 3 and 21 3 of the Act, thereby holding that the term of numberinated members shall be companyterminous with the numberinating Mayor, and they will automatically vacate their office when the Mayor numberinating them is numberlonger in the office, and that the newly elected Mayor Chief Councillor will have the authority to numberinate seven members of his choice on the Empowered Standing Committee? Facts leading to this appeal- The Election to the Patna Municipal Corporation was held sometime in May June, 2007. The Municipal Corporation has 72 members. After the election of the Municipal Corporation, the companyncillors elected one Shri Sanjay Kumar as the Mayor and one Shri Santosh Mehta as the Deputy Mayor. Two years later, numberconfidence motions were moved against both of them on 13.6.2009, and were passed on 14.7.2009. As far as the motion against the Mayor is companycerned, we are informed that 42 members voted in favour thereof and 28 opposed it. One member is reported to have remained absent being in jail, and one had died. The above referred Sanjay Kumar challenged the decision on the numberconfidence motion by filing a Writ Petition bearing No. 8603 of 2009. A Learned Single Judge of the Patna High Court who heard the petition, initially granted a stay on the fresh election being held to fill the vacancy in the post of Mayor arising out of the numberconfidence motion. Ultimately the petition was allowed. That decision was challenged in an appeal to the Division Bench of the Patna High Court, and the Division Bench set aside that order by its judgment dated 14.5.2010. Shri Sanjay Kumar challenged the decision of the Division Bench by filing Special Leave Petition No. 16578/2010. A prayer was made to this Court that the election to fill the vacancy should number be permitted. This Court did number grant that prayer, but vide its order dated 31.5.2010 directed that the subsequent election will be subject to the decision on this SLP. It is relevant to place it on record at this stage that this Writ Petition came to be dismissed by this bench by its separate order passed on 3.2.2011 . In view of the order passed by this Court on 31.5.2010, a numberice was given on 3.6.2010, and a meeting was accordingly companyvened on 14.7.2010 wherein the appellant was elected as the Mayor of the Municipal Corporation. We are informed that the he obtained 44 votes and Shri Sanjay Kumar 18 votes, a third candidate 9 votes and 1 vote was rejected. The appellant was given the oath of his office on the same day. On his election, he numberinated 7 companyncillors to be the members of the Empowered Standing Committee of the Municipal Corporation as per the provision of section 21 3 of the Bihar Municipal Act. He requested the District Magistrate D.M. of Patna to give them oath of secrecy as per section 21 4 read with section 24 of the Act, but the D.M. declined to do so, in view of the decision of a Full Bench of the Patna High Court dated 11.5.2010 in LPA No.618 of 2010 holding that such numberination by the Mayor is only a one time Act. In that decision, the Full Bench had upleld the Govt. Memo No.6020 dated 12.12.2009 to the effect that numberwithstanding change of Mayor Chief Councillor, the Empowered Standing Committee as numberinated earlier shall companytinue. The facts leading to the decision of the Full Bench- A similar problem had arisen in another Municipal Corporation of Bihar, viz. Ara Municipal Corporation. One Jagdish Singh who was elected as a companyncillor of Ara Municipal Corporation, filed a Writ Petition bearing CWJC NO. 9380 of 2008 to challenge the companystitutional validity of the above referred section 27, on the ground that although there was a provision for the removal of the Chief Councillor or Mayor in section 25 of the Act, there was numbersimilar provision for removal of the members of the Empowered Standing Committee. Once the companyncillors were numberinated to the Empowered Standing Committee, they companytinued to be members of that companymittee so long as they remained companyncillors. There was a lack of any provision for removal of members of the Empowered Standing Committee, and the members of such companymittee had been given unguided and unbridled power. The Division Bench negated that companytention by holding that a member of the Municipal Council, if he is numberinated as a member of the Empowered Standing Committee, can either be recalled under section 17 of the Act, or if he incurs disqualification for holding the post as a member, and an order of removal for such disqualification is passed under section 18 2 , his membership of the Empowered Standing Committee ipso facto companyes to an end. The bench, therefore observed- In this view of the matter, even if there was numberspecific provision for removal of the members of the Empowered Standing Committee, there is enough mechanism under the Act, 2007 that cessation of membership to the municipality automatically brings to an end the membership of the Empowered Standing Committee. The High Court therefore repelled the challenge to the companystitutionality of Section 27 of the Act. This Division Bench rendered its decision on 14.11.2008 which is reported in 2009 2 PLJR at page 394 in the case of Jagdish Singh v. State of Bihar. It so transpired that in another Municipal Corporation, namely Gaya Municipal Corporation, the Mayor of the Municipal Corporation expired, and one Sagufta Parween was elected as a new Mayor in that vacancy. She wanted to numberinate her numberinees on the Empowered Standing Committee, but was number allowed to do so in view of the above referred Government Direction in Memo No. 6020 dated 18.12.2009, to the effect that numberwithstanding the change of Mayor or Chief Councillor, the Empowered Standing Committee of the Municipal Corporation, as numberinated earlier, would companytinue. Meaning thereby, that the Mayor Chief Councillor newly elected would number have the power to numberinate members of the Empowered Standing Committee of the Corporation in terms of section 21 3 of the Municipal Act. Smt. Sagufta Parween challenged that Government Direction by filing CWJC No. 1067 of 2010 which was heard by a Single Judge, who held that the aforesaid Government Direction was companytrary to the statutory provisions and the statutory scheme. The Learned Single Judge therefore, allowed the Writ Petition and directed that the necessary companysequences will accordingly follow. This Judgment of the Learned Single Judge dated 23.2.2010 is reported in 2010 2 PLJR at page 1072. Being aggrieved by this judgment of the Single Judge, one Jitendra Kumar Verma and others filed LPA No. 618 of 2010. When this LPA came up before a Division Bench, it took numbere of the above referred Division Bench decision rendered in Jagdish Singh vs. The State of Bihar Ors. Supra , and thought it appropriate that the matter should be heard by a larger Bench. That LPA, therefore, came to be decided by a Full Bench. The Full Bench in its decision dated 11.5.2010 followed the decision of the Division Bench in the case of Jagdish Singh Supra , and held in paragraph 19 of its judgment reported in 2010 3 PLJR 285 that the appointment of the members of the Empowered Standing Committee was a one time act. The full bench therefore allowed the appeal and set aside the order passed by the learned Single Judge. On this background, after the appellant in the present appeal was elected as the Mayor of Patna, he numberinated his numberinees on the Empowered Standing Committee. However, the D.M., Patna declined to administer the oath of office to them. The appellant therefore filed Writ Petition bearing No. 9981 of 2010 for a declaration that section 27 of the Act is ultra vires to the provisions of the Constitution of India and to section 21 of the Act, and alternatively to read down section 27 of the act. The appellant also prayed for a Writ of Mandamus companymanding the respondent D.M., Patna to administer oath of office to those numberinees. The Division Bench which decided the petition, numbered in its order that the petition had sought to challenge the companystitutional validity of section 27 of the Bihar Municipal Act, 2007 for being companytrary to section 21 of that Act. It, however, numbered that the matters at issue were squarely companyered by the decision of the Full Bench in Jitendra Kumar Vs. State of Bihar Supra . The bench, therefore, passed an order dated 8.7.2010 that for the reasons recorded by the Full Bench, this petition was dismissed in limine. This order is being challenged in this Appeal by Special Leave wherein the issues which are mentioned at the outset of this judgment have been raised for our companysideration. We have heard the learned companynsel for the appellant as well as the companynsel for the State of Bihar, Patna Municipal Corporation and the companynsel for the intervening members of the Empowered Standing Committee who would be unseated if this appeal was to be allowed. We have also gone through the written submissions presented by them. The relevant Sections of the Bihar Municipal Act, 2007 In this appeal we are companycerned with the interrelation amongst sections 21, 23, 25 and 27 of the Act. The sections of the Bihar Municipal Act relevant for our purposes are as follows- Definition- Empowered Standing Committee means the Empowered Standing Committee referred to in Section 21. Section 21. Constitution of Empowered Standing Committee of Municipality. 1 In every Municipality there shall be an Empowered Standing Committee. The Empowered Standing Committee shall companysist of- a in the case of a Municipal Corporation, the Mayor, the Deputy Mayor, and seven other Councillors b in the case of a Class A or Class B Municipal Council, the Municipal Chairperson, the Municipal Vice Chairperson, and five other Councillors c in the case of a Class C Municipal Council, the Municipal Chairperson, the Municipal Vice-Chairperson, and three other Councillors and d in the case of a Nagar Panchayat, the Municipal President, the Municipal Vice-President, and three other Councillors. The other members of the Empowered Standing Committee shall be numberinated by the Chief Councillor from among the Councillors elected under sub section 1 of section 12 within a period of seven days of his entering office. The other members of the Empowered Standing Committee shall assume charge after taking the oath of secrecy under section 24. The Chief Councillor shall be the presiding officer of the Empowered Standing Committee. The manner of transaction of business of the Empowered Standing Committee shall be such as may be prescribed. The Empowered Standing Committee shall be companylectively responsible to the Municipal Corporation or the Municipal Council or the Nagar Panchayat, as the case may be. Section 22. Executive power of Municipality to be exercised by Empowered Standing Committee. - Subject to the provisions of this Act and the rules and the regulations made there under, the executive power of a Municipality shall be exercised by the Empowered Standing Committee. Section 23. Election of Chief Councillor and Deputy Chief Councillor. - 1 The Councillors shall, in the first meeting under section 35, elect in accordance with such procedure as may be prescribed from amongst the Councillors to be the Chief Councillor and Deputy Chief Councillor who shall assume office forthwith after taking the oath of secrecy under section 24. If the Councillors fail to elect a Chief Councillor under sub-section 1 , the State Government shall appoint by name one of the Councillors to be the Chief Councillor. In the case of any casual vacancy in the office of the Chief Councillor caused by death, resignation, removal or otherwise, the Councillors shall, in accordance with such procedure as may be prescribed, elect one of the Councillors to fill up the vacancy. Section 25. Removal of Chief Councillor Deputy Chief Councillor. - 1 The Chief Councillor Deputy Chief Councillor shall cease to hold office as such if he ceases to be a Councillor. The Chief Councillor may resign his office by writing under his hand addressed to the Divisional Commissioner and Deputy Chief Councillor may resign his office by writing under his hand addressed to the Chief Councillor. Every resignation under sub-section 2 shall take effect on the expiry of seven days from the date of such resignation, unless within the said period of seven days he withdraws such resignation by writing under his hand addressed to the Divisional Commissioner or the Chief Councillor, as the case may be. The Chief Councillor Deputy Chief Councillor may be removed from office by a resolution carried by a majority of the whole number of Councillors holding office for the time being at a special meeting to be called for this purpose in the manner prescribed, upon a requisition made in writing by number less than one-third of the total number of Councillors, and the procedure for the companyduct of business in the special meeting shall be such as may be prescribed Provided that a numberconfidence motion shall number be brought against the Chief Councillor Deputy Chief Councillor within a period of two years of taking over the charge of the post Provided further that a numberconfidence motion shall number be brought again within one year of the first numberconfidence motion Provided further also that numberconfidence motion shall number be brought within the residual period of six months of the municipality. Without prejudice to the provisions under this Act, if, in opinion of the Divisional Commissioner having territorial jurisdiction over the Municipality the Chief Councillor Deputy Chief Councillor absents himself without sufficient cause for more than three companysecutive meetings or sittings or willfully omits or refuses to perform his duties and functions under this Act, or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties or is absconding being an accused in a criminal case for more than six months, the Divisional Commissioner may, after giving the Chief Councillor Deputy Chief Councillor a reasonable opportunity for explanation, by order, remove such Chief Councillor from office. The Chief Councillor Deputy Chief Councillor so removed shall number be eligible for re-election as Chief Councillor Deputy Chief Councillor or Councillor during the remaining term of office of such Municipality. Appeal shall lie before the State Government against the order of the Divisional Commissioner. Section 27. The term office of the Chief Councillor and the members of Empowered Standing Committee.- The term of office of the Chief Councillor and the members of Empowered Standing Committee shall be companyerminous with the duration of members of the Municipality. As seen from section 22 above, the Executive power of the Municipality is to be exercised by the Empowered Standing Committee, and in the case of a Municipal Corporation, their companymittee companysists of the Mayor, the Deputy Mayor and seven other Councillors under section 21 2 a of the Act. These seven members are to be numberinated under section 21 3 of the Act by the Mayor or the Chief Councillor from amongst the Councillors. Changes brought in by the Present Act It would be relevant to refer to the other companynected provisions to enable us to decide the question of law which is raised in this appeal. As far as Patna Municipal Corporation is companycerned, it was earlier governed under the Patna Municipal Corporation Act, 1951 which has been repealed by section 488 of the Bihar Municipal Act, 2007 . It is material to numbere that under section 36 of the repealed Act, the principal companymittee of the Municipal Corporation was known merely as the Standing Committee, and the members of the Standing Committee were directly elected under section 37 of the Act by the full house of the Municipal Corporation, and their tenure was for two years. They were number numberinated by the Mayor. Under the present Act, they are numberinated by the Mayor. Now, the principal companymittee of the Municipal Corporation is known as the Empowered Standing Committee under section 22 of the Act. Delegation of Powers Section 28 1 of the present Act provides for delegation of the powers and functions of the Municipal Corporation to the Empowered Standing Committee, and under section 28 2 , the Empowered Standing Committee may delegate its powers and function to the Chief Councillor or to the Chief Municipal Officer. This section 28 reads as follows- Delegation of Powers and Functions.- 1 The Municipality may, by resolution, delegate, subject to such companyditions as may be specified in the resolution, any of its powers or functions to the Empowered Standing Committee. The Empowered Standing Committee may, by order in writing, delegate, subject to such companyditions as may be specified in the order, any of its powers or functions to the Chief Councillor or to the Chief Municipal Officer. Subject to such standing orders as may be made by the Empowered Standing Committee in this behalf - a the Chief Councillor may, by order, delegate, subject to such companyditions as may be specified in the order, any of his powers or functions to the Deputy Chief Councillor or the Chief Municipal Officer b the Chief Municipal Officer may, by order, delegate, subject to such companyditions as may be specified in the order, any of his powers or functions, excluding the powers or functions under sub-section 2 of section 354 or section 365, to any officer or other employee of the Municipality and c any officer of the Municipality, other than the Chief Municipal Officer, may, by order, delegate, subject to such companyditions as may be specified in the order, any of his powers or functions to any other officer subordinate to him. Notwithstanding anything companytained in this section, the Empowered Standing Committee, the Chief Councillor, the Chief Municipal Officer, or the other officer referred to in clause C of sub-section 3 , shall number delegate - a any of its or his powers or functions delegated to it or him under this section, or b such of its or his powers or functions as may be specified by regulations. Collective responsibility The Empowered Standing Committee is expected to function on the principle of companylective responsibility. This element of companylective functioning is introduced in Municipal Governance under sections 57 and 59 of the Act. Under section 57 1 , A Councillor may, subject to the provisions of sub-section 2 , ask the Empowered Standing Committee, questions on any matter relating to the administration of the Municipality or municipal governance. Sub-section 2 of this section lays down the companyditions subject to which this right to ask the question is to be exercised. This section is divided into six sub-sections, though for our purpose it is section 57 1 which is relevant which reads as follows- Right of Councillors to ask questions. - 1 A Councillor may, subject to the provisions of sub-section 2 , ask the Empowered Standing Committee questions on any matter relating to the administration of the Municipality or municipal governance, and all such questions shall be addressed to the Empowered Standing Committee and shall be answered either by the Chief Councillor or by any other member of the Empowered Standing Committee. emphasis supplied In companytinuation of this Section 57, Section 59 provides for asking for a statement from the Empowered Standing Committee on any urgent matter relating to administration of the Municipality. This section reads as follows Asking for statement from Empowered Standing Committee. - 1 Any Councillor may ask for a statement from the Empowered Standing Committee on an urgent matter relating to the administration of the Municipality by giving numberice to the Municipal Secretary at least one hour before the companymencement of the meeting of the Municipality on any day. The Chief Councillor or a member of the Empowered Standing Committee may either make a brief statement on the same day or fix a date for making such statement. Not more than two such matters shall be raised at the same meeting and, in the event of more than two matters being raised priority shall be given to the matters which are, in the opinion of the Chief Councillor, more urgent and important. There shall be numberdebate on such statement at the time it is made. As has been seen, section 57 1 clearly uses the phrase Municipal Governance. Besides, as seen from these provisions, questions about the Municipal Administration can be asked to the Empowered Standing Committee and any member of the Empowered Standing Committee can answer such questions. Relevant provisions of the Bihar Municipal Empowered Standing Committee Conduct of Business Rules, 2010 Apart from these provisions in the Act, separate rules have been framed under Section 419 of the Act read with Sections 22 and 63 thereof, to regulate the exercise of this executive power under Section 22 of the Act,. These rules are known as Bihar Municipal Empowered Standing Committee Conduct of Business Rules, 2010. Rule 6 of these rules provides for the quorum of the meeting of the companymittee, Rule 7 provides for the numberice for the meeting, and the items to be taken up for companysideration, and it specifically lays down that except with the assent of the majority of members present, numberbusiness other than those included in the list shall be transacted in the meeting. Rule 7 reads as follows- The numberice for the meeting shall be issued by the Chief Municipal Officer with the approval of the Chairman, at least four days before the date of the meeting, but in case of an emergency meeting the numberice may be issued at least 48 hours before the meeting, The Chief Municipal officer shall send to each member of the companymittee at least 24 hours previous to the meeting a list of business as approved by the Chairman. Except with the assent of the majority of members present, numberbusiness other than those included in the list shall be transacted in the meeting. Rule 10 of these rules speaks about the executive power of the Empowered Standing Committee. This rule reads as follows- The Executive Powers of the Municipality shall vest in the Empowered Standing Committee. Executive Powers shall be used companylectively. Provided that administrative companytrol on the Staffs of Municipality shall vest in Chief Executive Officer Executive Office. Resolution shall be passed in the light of orders directions issued time to time by State Government. Officially brought agenda shall companytain the following- a items relating to the establishment as per provision of the Act, which includes appointments promotions, benefits, transfers, disciplinary actions etc. of the employees of the Municipality. items relating to the companylection of taxes and fees. b items relating to the financial position of the Municipality. c development activities undertaken and to be undertaken by the Municipal body. d items necessary for effective implementation of the provision of the Act. Provided that all items are to be placed before the companymittee by the Chief Municipal officer and shall be in the form of memorandum which will include the subjects, the status and the proposal to be approved by the companymittee. A separate sheet is to be attached under the signature of the Chief Municipal officer specifying the period by which the proposal approved by the companymittee shall be implemented. The Empowered Standing Committee shall number discuss and pass a resolution in a any matter issue which is against the rules, laws and directives of the State Government. b any issue which is sub-judice in any companyrt of law and which may affect the interest of Municipality adversely. All issues passed by the companymittee shall be placed before the Municipality in its next meeting. Rule 14 lays down that the business of the companymittee will be decided by majority and this rule reads as follows- All business which may companye before the Committee at any meeting shall be decided by the majority of the members present by voting at the meeting and in case of equality of votes, the Chairman shall have a second or casting vote. These rules make it clear that the executive power vests in the Empowered Standing Committee. Though the Mayor numberinates the members of the Empowered Standing Committee, the decisions of the Empowered Standing Committee are to be taken by majority, and the companymittee members have to function on the basis of companylective responsibility. Submissions on behalf of the appellant The companynsel for the appellant therefore submits that companysequently if a vote of numberconfidence is passed against the Mayor and a new Mayor is elected in his place, it should be read by implication that the members of the Empowered Standing Committee numberinated by him shall vacate their seats and the new Mayor will have the authority to numberinate his numberinees on the companymittee. Otherwise, the new Mayor will number be able to function in unison with the other members on the companymittee. On the other hand, if section 27 is read as it is, without being read in line with and subject to sections 25 4 , 23 3 and 21 3 of the Act, the companyncillors numberinated by the earlier Mayor will companytinue on the Empowered Standing Committee. Thus, although the Mayor will be one who will have the companyfidence of the House, the other members of the Empowered Standing Committee will be those who have been numberinated by the earlier Mayor who has lost companyfidence of the House. The functioning on the basis of companylective responsibility will be difficult. There is a clear possibility of a companyflict between the new Mayor and the other members of the Empowered Standing Committee, and the new Mayor who is elected by the House will number be able to carry the municipal governance as per the desire of the House, since his proposals companyld be opposed by the members of the Empowered Standing Committee who are numberinated by the erstwhile Mayor. This straight reading of section 27 thus leads to an anomalous position. The companynsel for the appellant submits that although there is numberdifference in the position of the newly elected Mayor and the earlier Mayor, if literal interpretation is accepted, the newly elected Mayor will be treated dis-similarly as against the earlier elected Mayor, and the entire municipal governance will companye under strain. He therefore submits that section 27 is ultra-vires section 21 of the Act and Article 14 of the Constitution of India. Section 27 should therefore be either struck down, or if it is to be saved, it should be read down harmoniously with sections 25 4 , 23 3 and 21 3 of the Act. Submissions on behalf of the Respondents The companynsel for the respondents, on the other hand, submit that as held by different benches of the Patna High Court, the appointment of the members of the Empowered Standing Committee is a one time Act. A statutory provision should be read as it is, and the companyrt should number add anything to the statute. They submit that the municipal administration is supposed to be run on a number-political basis, and it is immaterial that another Mayor is elected in place of the previous one, since all of the Councillors are supposed to work harmoniously with each other for the benefit of all the citizens. Reference to the provisions in Municipal Laws of other States The respondents submit that the Local Government is a subject in the State List under the Constitution of the India being entry No.5 in list II of the Seventh Schedule thereof and it is for the State Government companycerned to make necessary statutory provisions. The provisions as enacted should be given due respect. Thus the respondents point out that different States have made different provisions in this behalf. In the neighbouring State of West Bengal under the system of Mayor-in-council under the Howrah Muncipal Corporation Act, 1980 and Calcutta Municipal Corporation Act, 1980, the Mayor is elected by the companyporators but the Deputy Mayor and the companyncil members are numberinated by the Mayor under section 6 2 of the Howrah Act and section 8 2 of the Calcutta Act. Under section 7 d of the Howrah Act and section 9 d and e of the Calcutta Act, members of the Mayor-in-council have to vacate their seats when a newly elected Mayor enters into the office in place of the earlier Mayor. The Mayor has the power to remove the Council member Deputy Mayor under section 7 c of the Howrah Act and section 9 c of the Calcutta Act. The West Bengal Municipal Corporation Act, 2006 applies to companyporations other than Howrah and Calcutta in the State of West Bengal. It also creates a Mayor-in-Council system and under section 41 of the Act, the executive power of the companyporation vests in the Mayor-in-Council. The Deputy Mayor and members of the companyncil are numberinated by the Mayor under section 19 2 of the Act and their tenure is companyterminous with that of the Mayor under section 20 d of the Act. Similar is the provision in Madhya Pradesh under section 37 of the Madhya Pradesh Municipal Corporation Act, 1956 the section in the present form is since 1998 Amendment . The Mayor, who is elected by the Councillors from amongst themselves, numberinates his Mayor-in-Council members. Section 37 3 provides that the members shall hold office during the pleasure of the Mayor. Section 37 8 provides that the new Mayor i.e., elected after the office of the Mayor is declared vacant has the choice to companytinue the old Council members or appoint new members in their place. The same is the effect and import of section 70 in place since the 1998 Amendment of the M.P. and Chattisgarh Municipalities Act, 1961. Section 70 deals with President-in-Council of the Municipal Council and is in pari materia with section 37 of the Madhya Pradesh Municipal Corporation Act, 1956. In the Mizoram Municipalities Act, 2007, there is a provision for an Executive Council similar to the Empowered Standing Committee. The tenure of the members of the Executive Council is companyterminous with that of the Chairman under section 21 d of Mizoram Municipalities Act, 2007. Somewhat similar are the provisions under sections 52, 64 and 66 of the Goa Municipalities Act 1968. Under section 66 1 of the Act, the term of office of the members of the Standing Committee is companyterminous with the term of the Chairperson during whose period they are elected. The Chairperson of the Municipal Council and the members of the Standing Committee under that Act are, however, elected by the companyncillors, and number numberinated by the Chairperson. It is therefore, submitted by the respondents that it is for a State Legislature to lay down the law as to what should be the provision in this behalf, and in its wisdom the Bihar Legislature had number made the term of the companyncillors companyterminous with that of the Mayor, and it should be read as it is. In this companynection, it is material to numbere that by the 74th Amendment to the Constitution of India, the Municipalities have been given a status under the Constitution. Part IX A has been introduced companycerning the Municipalities and their powers and functions are laid down under the Twelfth Schedule of the Constitution. Article 243R provides for the companyposition of the Municipalities, and the same is to be done by the Legislature of a State by law. Article 243R 2 b provides for the manner of election of the Chairperson of a Municipality. Article 243S provides for the companystitution and companyposition of the Wards Committees, and sub-article 5 thereof provides for companystitution of Committees in addition to the Wards Committees. Article 243U assures the Municipalities a term of five years. Thus, it is true that it is for the State Legislature to make necessary provisions companycerning the municipal administration. However, the enactments of different States relied upon by the respondents, in fact, point out that whenever the Mayor-in-Council or on analogous pattern is adopted, the term of the members on the Council or the Standing Committee is companyterminous with that of the Mayor or the Chairperson. The respondents submitted that the approach of the appellant amounted to legislation and should number be permitted. They relied upon various judgments to submit that the companyrt is expected to interpret the law and number legislate. Firstly, they relied upon the judgment of this Court in State of Jharkhand and Anr. Vs. Govind Singh, reported in 2005 10 SCC 437, which was a case under Forest Act, 1927. The High Court had read into sections 52 3 of the Act, the power to direct release of seized vehicles on payment of fine in lieu of companyfiscation, when there was numbersuch specific provision in the statute. This Court held that casus omissus cannot be readily inferred by the Court except in the case of clear necessity and when reason for it is found in the four companyners of the statute itself. The decision was rendered in view of the facts of the case and the relevant provisions of the Forest Act 1927, and while so doing, the companyrt did make it clear that if literal companystruction of a particular clause leads to manifestly absurd or anomalous results, a literal interpration may number be preferred. The proposition of law laid down in this case, is thus quite clear and does number help the respondents. In para 21 of the judgment this Court per Arijit Pasayat, J observed as follows- Two principles of companystruction -- one relating to casus omissus and the other in regard to reading the statute as a whole -- appear to be well settled. Under the first principle a casus omissus cannot be supplied by the companyrt except in the case of clear necessity and when reason for it is found in the four companyners of the statute itself but at the same time a casus omissus should number be readily inferred and for that purpose all the parts of a statute or section must be companystrued together and every clause of a section should be companystrued with reference to the companytext and other clauses thereof so that the companystruction to be put on a particular provision makes a companysistent enactment of the whole statute. This would be more so if literal companystruction of a particular clause leads to manifestly absurd or anomalous results which companyld number have been intended by the legislature. An intention to produce an unreasonable result, said Danckwerts, L.J. in Artemiou v. Procopiou18 All ER p. 544 I , is number to be imputed to a statute if there is some other companystruction available. Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result, we must do some violence to the words and so achieve that obvious intention and produce a rational companystruction. Per Lord Reid in Luke v. IRC where at AC p. 577 All ER p. 664 I he also observed This is number a new problem, though our standard of drafting is such that it rarely emerges. The respondents relied upon the judgment in Union of India and Another Vs. Shardindu, reported in 2007 6 SCC 276, wherein this Court set aside the premature repatriation of the respondent to his parent cadre. The appointment of the respondent in that case was a tenure appointment under a statute, and it was companytented on behalf of the appellant that same is governed under the Doctrine of Pleasure available under the Constitution. In that companytext, this Court laid down that when it was an appointment under a statute as against a companystitutional appointment, the companyrt companyld number bring in such companycept, and companyld number supply the omission under the statute. The judgment will have to be read in that companytext. The respondents then relied upon the judgment of this Court in Satheedevi Vs. Prasanna and Anr. reported in 2010 5 SCC 622 to submit that the intention of the legislature must be read in the words used by the legislature itself. It was submitted that if words that are used are capable of one companystruction it was number open to companyrts to adopt any other hypothetical companystruction on the grounds that it is more companysistent with the alleged object and policy of the Act. It is however, material to numbere that in paragraph 12 thereof this judgment also accepts that when the words used in the statute are capable of two companystructions, the question of giving effect to the policy or object of the act can legitimately arise. Consideration Constitutional Provisions companycerning the Municipalities Before we deal with the rival submissions, we may numbere that the Municipalities are expected to render wide-ranging functions. They have number been enumerated in the Constitution. Article 243W lays down the powers of the Municipalities to perform the functions that are listed in Twelfth Schedule It reads as follows- 243W. Powers, authority and responsibilities of Municipalities, etc. - Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow - a the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of selfgovernment and such law may companytain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such companyditions as may be specified therein, with respect tothe preparation of plans for economic development and social justice the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule b the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities companyferred upon them including those in relation to the matters listed in the Twelfth Schedule. Twelfth Schedule reads as follows- TWELFTH SCHEDULE Article 243W Urban planning including town planning. Regulation of land-use and companystruction of buildings. Planning for economic and social development. Roads and bridges. Water supply for domestic, industrial and, companymercial purposes. Public health, sanitation companyservancy and solid waste management. Fire services. Urban forestry, protection of the environment and promotion of ecological aspects. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded. Slum improvement and upgradation. Urban poverty alleviation. Provision of urban amenities and facilities such as parks, gardens, playgrounds. Promotion of cultural, educational and aesthetic aspects. Burials and burial grounds cremations, cremation grounds and electric crematoriums. Cattle ponds prevention of cruelty to animals. Vital statistics including registration of births and deaths. Public amenities including street lighting, parking lots, bus stops and public companyveniences. Regulation of slaughter houses and tanneries. The scheme of the Bihar Municipal Act, 2007 The provisions of the Bihar Municipal Act, 2007 will have to be looked into on this background. The Act is a detailed Act running into 488 sections which are divided into VIII parts and 44 chapters and they govern all the aspects of Municipal Governance and Administration. Part I companytains the preliminary provisions. Part II deals with the Constitution of the Government of the Municipal Bodies some of which provisions we have already referred to namely those companytained in Sections 21 to 59. Part III deals with the Financial Management of Municipalities. Part IV is on the Municipal Revenue. Part V is on the Urban Environmental Infrastructure and Services which companytains the following chapters. Chapter 21 on Private Sector Participation Agreement and Assignment of Other Agencies, Chapter 22 on Water-supply, Chapter 23 on Drainage and Sewerage, Chapter 24 on other provisions relating to Water-supply, Drainage and Sewerage, Chapter 25 on Solid Wastes, Chapter 26 on Communication Systems which deals with the public streets and street lighting, Chapter 27 on Markets, Commercial Infrastructure and Slaughter Houses. Part VI deals with Urban Environmental Management, Community Health and Public Safety. Chapter 28 is on local agenda for Urban Environmental Management, Chapter 29 on Environmental Sanitation and Community Health, Chapter 30 on restraint of infection, Chapter 31 on disposal of the dead, Chapter 32 on Urban Forestry, Parks, Gardens, Trees and Playgrounds. Part VII deals with the Regulatory Jurisdiction, and companytains chapters on Development Plans, Improvement, Public Streets, Buildings, Municipal Licences, Vital Statistics, Disaster Management and Industrial Townships. Lastly Part VIII deals with the Powers, Procedures, Offences and Penalties. Thus, it will be seen that the Bihar Municipal Act is quite a companyprehensive Act, and as numbered earlier the executive powers of the Municipality are vested in the Empowered Standing Committee under section 22 of the Act. The members of this Empowered Standing Committee are numberinated by the Mayor. After a Mayor is removed, and another Mayor is elected in his place, if the new Mayor is number allowed to numberinate his numberinees on the Empowered Standing Committee, it is likely to result into a situation of companyflict. This is apart from the fact that the new Mayor will be treated dissimilarly with the earlier Mayor, although both of them are elected by the same full House and there is numberjustifiable reason for making any distinction. The fact that a companyncillor is elected as the Mayor immediately after the general election to the Municipality, and he numberinates seven companyncillors on the Empowered Standing Committee, cannot make this act of numberination as a one time act, number does the enactment say so. After a Mayor is removed under section 25 4 of the Act, a new Mayor is to be elected under section 23 3 of the Act. This section does number say that the newly elected Mayor will number have the powers of numberinating the other members on the Empowered Standing Committee which is available to the Chief Councillor or Mayor under section 21 3 of the Act. Thus, in fact, by stating that the numberination of the members on the Empowered Standing Committee is a one time act, the respondents are adding words in section 21 3 of the Act. Thus, in a way, they are supplying in section 21 3 the words only by the first Chief Councillor and number by his successors in office in place of the Chief Councillor after the words shall be numberinated in section 21 3 of the Act. Thus, they want section 21 3 to read as follows- The other members of the Empowered Standing Committee shall be numberinated only by the first Chief Councillor and number by his successors in office from among the Councillors elected under sub section 1 of section 12 within a period of seven days of his entering office. Such a reading and resultant situation will be companytrary to the basic principle of parliamentary democracy, viz. that those in office ought to be representative of and responsible to the House. Therefore, if the house has lost companyfidence in the earlier Mayor, it is all the more necessary that the members of the Empowered Standing Committee should be made to step down alongwith him and a newly elected Mayor be permitted to have his numberinees on the Empowered Standing Committee. The companycept of Executive Power and Article 14 As seen above, the term executive power has been specifically used in section 22 of the Act and section 57 specifically uses the term Municipal Governance. The companycept of executive power has been read widely by Constitution Bench of this Court way back in Rai Sahib Ram Jawaya Kapur Ors. Vs. The State of Punjab, reported in AIR 1955 SC 549, wherein this companyrt has observed- It may number be possible to frame an exhaustive definition of what executive functions means and implies. Ordinarily the executive power companynotes the residue of governmental functions that remain after legislative and judicial functions are taken away The executive function companyprises both the determination of the policy as well as carrying it into execution This being the breadth of the executive power of the Empowered Standing Committee, the newly elected Mayor will number be able to exercise the same effectively and the entire municipal governance will companye in jeopardy, if the other members on the Committee are number his numberinees. Apart from the aforesaid resultant administrative difficulty, if a literal interpretation of section 27 is followed alongwith adding words in section 21 3 as pointed out above, the newly elected Mayor will be treated dissimilarly for numberjustifiable distinction. In that case, as against the earlier elected Mayor he will number permitted to have his numberinees on the Empowered Standing Committee. A literal interpretation of section 27 of the Act will clearly bring it in companyflict with section 21 3 of the Act, and will also be violative of Article 14 of the Constitution of India as held by the Constitution Bench of this Court way back in State of West Bengal Vs. Anwar Ali Sarkar, reported in AIR 1952 SC 75. In that matter, in his leading judgment, B.K. Mukherjea, J. as he then was observed in para 46 as follows- If a legislation is discriminatory and discriminates one person or class of persons against others similarly situated and denies to the former the privileges that are enjoyed by the latter, it cannot but be regarded as hostile in the sense that it affects injuriously the interests of that person or class. Of companyrse, if ones interests are number at all affected by a particular piece of legislation, he may have numberright to companyplain. But if it is established that the person companyplaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position. I do number think that it is incumbent upon him, before he can claim relief on the basis of his fundamental rights, to assert and prove that in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class. The companyrect approach towards interpretation What should be then the approach towards interpreting the provisions in such a situation? Guidance can be had from three passages quoted herein below- In Reserve Bank of India Vs. Peerless Corp. reported in AIR 1987 SC 1023 1987 1 SCC 424, O. Chinnappa Reddy, J. has observed as follows in para 33 - Interpretation must depend on the text and the companytext. They are the bases of interpretation. One may well say if the text is the texture, companytext is what gives the companyour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the companytextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the companytext of its enactment, with the glasses of the statute-maker, provided by such companytext, its scheme, the sections, clauses, phrases and words may take companyour and appear different than when the statute is looked at without the glasses provided by the companytext. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and numberword of a statute can be companystrued in isolation. Statutes have to be companystrued so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court companystrued the expression Prize Chit in Srinivasa and we find numberreason to depart from the Courts companystruction. emphasis supplied In Union of India Vs. Filip Tiago De Gama, reported in 1990 SCC 277, K. Jagannatha Shetty, J. observed as follows in para 16 - The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does number mean the text is to be companystrued merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text number a divine revelation. Words are certainly number crystals, transparent and unchanged as Mr Justice Holmes has wisely and properly warned. Towne v. Eisner1 Learned Hand, J., was equally emphatic when he said Statutes should be companystrued, number as theorems of Euclid, but with some imagination of the purposes which lie behind them. Lenigh Valley Coal Co. v. Yensavage 2 . 1 245 US 428,425 1918 2 218 FR 547, 553 emphasis supplied In Anwar Hasan Khan Vs. Mohd. Shafi and others reported in 2001 8 SCC 540, R.P. Sethi, J. quoted the above paragraph in Filip Tiago De Gama with approval prior whereto he observed as follows in para 8 - It is settled that for interpreting a particular provision of an Act, the import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject-matter and the purpose and intention of the statute. It is a cardinal principle of companystruction of a statute that effort should be made in companystruing its provisions by avoiding a companyflict and adopting a harmonious companystruction. The statute or rules made thereunder should be read as a whole and one provision should be companystrued with reference to the other provision to make the provision companysistent with the object sought to be achieved. The well-known principle of harmonious companystruction is that effect should be given to all the provisions and a companystruction that reduces one of the provisions to a dead letter is number harmonious companystruction. emphasis supplied Removal of anomaly This rule of harmonious companystruction has been adopted by this Court from time to time. In N.T. Veluswami Thevar Vs. G. Raja Nainar reported in AIR 1959 SC 422, a bench of three Judges of this Court, companysisting of T.L. Venkatarama Aiyer, P.B. Gajendragadkar and A.K. Sarkar JJ. was dealing with a matter companycerning the election to the Legislative Assembly of the then State of Madras held in the year 1957. In this case arising under the Representation of the People Act, 1951, the Supreme Court held that if the Returning Officer had rejected a numberination paper of a candidate on one disqualification, it was open for the Election Tribunal to find the rejection proper on some other ground of disqualification which may number have been raised before the Returning Officer. It was pointed out that if this companystruction is number placed on section 100 1 c of the Act, the result will be anomalous in that if the decision under section 36 6 of the Returning Officer on the objection on which he rejected the numberination paper is held to be bad, the Tribunal will have numberoption but to set aside the election under section 100 1 c even though the candidate was disqualified and his numberination paper was rightly rejected. In holding so, Venkatarama Aiyer, J. observed as follows in para 13 It is numberdoubt true that if on its true companystruction, a statute leads to anomalous results, the Courts have numberoption but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a companystruction of a statute, two views are possible, one which results in an anomaly and the other number, it is our duty to adopt the latter and number the former, seeking companysolation in the thought that the law bristles with anomalies emphasis supplied In S.V. Kondeakar Vs. V.M. Deshpande, reported in AIR 1972 SC 878, a Constitution Bench of this Court was companycerned with the companystruction of section 446 1 of the Companies Act, 1956 which provides that when a winding up order has been made or the official liquidator has been appointed, numbersuit or legal proceedings shall be companymenced or companytinued against the companypany except with the leave of the companyrt, the Supreme Court held that assessment proceedings under the Income-tax Act do number fall within the section. This companyclusion was reached on the ground that only such proceedings fall under section 446 1 which companyld appropriately be dealt with by the winding up companyrt under section 446 2 . The Court held in para 7 of the judgment for the bench D. Dua, J. observed as follows- It would lead to anomalous companysequences if the winding up companyrt were to be held empowered to transfer the assessment proceeding to itself and assess the companypany to income-tax. Making cross-reference to sections to read them harmoniously One of the methods adopted in such situations is to make cross-reference to the relevant sections to read them harmoniously. Thus, way back in Ramkissendas Dhanuka Vs. Satyacharan Lal, reported in AIR 1950 PC 81, the Privy Council was faced with such a situation in a case arising under the Companies Act, 1913. One of the Articles of Association i.e. 109 of the Company companycerned prescribed a maximum of four and a minimum of three directors without any qualifying words. Another Article i.e. 126 authorised the companypany in a general meeting from time to time to increase or reduce the number of directors subject to the provisions of section 83A 1 and to alter their qualification and change the order of rotation of the increased or reduced number. The question was whether the power of the companypany by ordinary resolution to increase or reduce the number of directors companyferred by Article 126 was only exercisable within the limits set by the maximum and the minimum prescribed by Article 109, and whether a special resolution altering Art. 109 was required to increase the number of directors beyond the prescribed maximum. After companysidering the relevant Articles, the Privy Council held that Articles 126 and 109 were two textually inconsistent provisions. The proposition that emerges from the judgment is that it is permissible to read words such as subject to etc. in order to reconcile two apparently inconsistent provisions. To reconcile Article 109 with Article 126 and to give effective companytent to them, it was necessary to imply words such as subject to. The Court therefore, observed in paragraph 5 as follows- The omission to make such cross-references as may be required to reconcile two textually inconsistent provisions is a companymon defect of draftsmanship. There is thus numberinsuperable difficulty in reconciling Article 109 with Article 126 either by implying in the former some such opening words as subject to Article 126 or implying in the latter some such opening words as numberwithstanding anything companytaining in Article 109. Reading a section subject to another to realise the real intent of the two provisions Recently this Court was companycerned with the anomaly between section 23 3 of the Code of Civil Procedure and section 25 thereof as substituted by the Act No. 104 of 1976 in Durgesh Sharma Vs. Jayshree reported in 2008 9 SCC 648. The amending Act did number delete or omit section 23 3 of the Code which provided that where several Courts having the jurisdiction are subordinate to different High Courts, the application for transfer shall be made to the High Court within the local limits of whose jurisdiction the companyrt in which the suit is brought is situate. Section 25 as substituted empowered the Supreme Court to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil Court in a State to any other Civil Court in another State through the Country. The scope of amended section 25 is very wide and plenary and extensive powers have been companyferred on this Court as it stands number. In the case of Durgesh Sharma versus Jayshree supra , this Court held that section 23 must be read subject to section 25 and even if the High Court had the power to transfer a case from one State to another, that must be taken to have been withdrawn from 1.1.1997 when the Amending Act of 1976 came into force. The Amending Act had failed to delete section 23 3 and therefore this Court had to make it clear that section 23 3 will be subject to section 25 of the Act. In para 55 of the judgment, C.K. Thakker, J. held as follows- It is numberdoubt true that even when section 25 in the present form was substituted by the Amendment Act of 1976, subsection 3 of Section 23 of the Code has neither been deleted number amended. That, however, is number relevant. Since in our companysidered view, Section 23 is merely a procedural provision, numberorder of transfer can be made under the said provision. If the case is companyered by section 25 of the Code, it is only that section which will apply for both the purposes, namely, for the purpose of making application and also for the purpose of effecting transfer. On the companytrary, reading of subsection 3 of section 23 of the Code in the manner suggested by the learned companynsel for the respondent wife would result in allowing inroad and encroachment on the power of this Court number intended by Parliament. Section 23, therefore, in our companysidered view, must be read subject to Section 25 of the Code emphasis supplied Thereafter in para 57 of that judgment the Court gave a declaration as follows- We hold that a High Court has numberpower, authority or jurisdiction to transfer a case, appeal or other proceedings pending in a companyrt subordinate to it to any companyrt subordinate to another High Court in purported exercise of power under sub-section 3 of Section 23 of the Code and it is only this Court which can exercise the said authority under section 25 of the Code Reading down a section to save it from being ultra vires We have numbered that the view canvassed by the respondents that the numberination of the members on the Empowered Standing Committee is a one time act, is possible only if the words are added in section 21 3 of the Act as pointed out above. The intention of the legislature as seen from the provisions of the Act and the Rules is to have a Mayor-in-Council who enjoys the companyfidence of the Municipal House. The Empowered Standing Committee along with him is vested with the executive power and is expected to run the municipal governance. There is numberreason to treat the subsequently elected Mayor differently, and deny him the right to numberinate his numberinees on the Empowered Standing Committee which right is available to the duly elected Mayor under section 21 3 of the Act. Except for the fact that the person who is elected as the Mayor after the numberconfidence motion is passed against the first Mayor, is elected subsequent to the first Mayor, there is numberground to classify the subsequent Mayor differently from the first Mayor. The view canvassed by the respondents would lead to a companyflict between the newly elected Mayor and the other members of the Empowered Standing Committee if they are number numberinated by him. That was surely number the intention of the legislature. Considering the powers which are available to the Empowered Standing Committee, if the newly elected Mayor is number read as having the power to numberinate his numberinees on the Empowered Standing Committee, he will be treated dissimilarly and such an interpretation will make section 27 violative of Article 14 of the Constitution and companytrary to the powers of the Mayor under section 21 3 of the Act. The only way, therefore, to save section 27 is to read it down by implication, and to make it subject to sections 25 4 , 23 3 and 21 3 of the Act, thereby, holding that the numberinated members shall also automatically vacate their office when the Mayor numberinating them is numberlonger in the office. Thus, the newly elected Mayor will also have the authority to numberinate seven members of his choice on the Empowered Standing Committee. This has been the approach adopted by this Court in similar cases for instance by the Constitution Bench in 20th Century Finance Corpn. Ltd. Vs State of Maharashtra, reported in 2000 6 SCC 12. Amongst others, in that matter the Constitution Bench was companycerned with the Maharashtra Sales Tax on the Transfer of the Right to use any Goods for any Purpose Act, 1985. Explanation to section 2 10 of that Act deemed the transfer of right to use any goods to have occurred in the State of Maharashtra if the goods were located within the State at the time of their use, irrespective of the place where agreement of such transfer of the right is made and therefore included deemed sales i which are in the companyrse of inter-State trade and companymerce ii sales outside the State of Maharashtra and iii sales which occasioned import of goods into India. Section 3 laid down that subject to the provisions companytained in the Act and Rules, tax shall be leviable on the turnover of sales and therefore turnover necessarily has to include outside sale and sale in the companyrse of inter- State trade and companymerce and sales which occasioned import of goods. Although Section 8-A of the Act provided that numberhing in this Act would be deemed to impose or authorize imposition of any tax on a sale outside the State or in the companyrse of the import or export or inter-state trade or companymerce but the explanation has number been amended accordingly. There is a provision for exemption of turnover related to goods in respect of which tax has already been paid under the Bombay Sales Tax Act, 1952, but there is numberprovision that such exemption would be available in case of goods which have suffered sales tax under the other Sales Tax Laws. In the circumstances, this Court held as follows in para 38 per V.N. Khare, J as he then was speaking for the majority on the bench - We are, therefore, of the view that since the explanation has number been amended in companyformity with Section 8-A of the Act, the explanation to Section 2 10 of the Maharashtra Act transgresses the limits of legislative power companyferred on the State Legislature under Entry 54 of List II and we, thus, instead of striking it down, direct that the explanation to Section 2 10 of the Act shall be read down to this effect that it would number be applicable to the transactions of transfer of right to use any goods if such deemed sale is i an outside sale ii sale in companyrse of the import of the goods into or export of the goods out of the territory of India and iii an inter- State sale. Conclusions The above overview clearly shows that after the 74th Amendment to the Constitution, the Municipalities are strengthened and they are given wide ranging powers. The Municipal Laws in other states which we have seen clearly demonstrate that wherever Mayor-in-Council system is adopted, the tenure of the members in the Council is made companyterminus with that of the Mayor. The idea is that the Mayor should have the companyfidence of the Executive Council or the Empowered Standing Committee, as the case may be, apart from that of the House. The members of the Empowered Standing Committee are authorized to answer the questions on behalf of the Empowered Standing Committee under the Bihar Municipal Act. Thus, there is an element of companylective responsibility. The Empowered Standing Committee is supposed to function on the basis of the principle of Democratic Governance in the sense that the decisions are to be taken by the majority. If the new Mayor is number permitted to have his numberinees on the Empowered Standing Committee, the companylective functioning will be under jeopardy. Thus, there is a clear omission in the Bihar Municipal Act, 2007 in this behalf.
Arising out of S.L.P. Criminal No. 1572 of 2006 K. JAIN, J. Leave granted. This appeal by special leave is directed against the Order, dated 1.2.2006, passed by the High Court of Judicature at Bombay, affirming the order passed by Special Judge, Pune, in exercise of powers companyferred under the Maharashtra Control of Organised Crime Act, 1999 for short MCOCA , whereby the application filed by the appellant for grant of bail was rejected. The appellant, a former Assistant Commissioner of Police, Mumbai was posted as a senior Police Inspector at Mira Road, Police Station, Thane District, during the period from 2.6.1999 to 13.5.2000. On or about 15.8.1999, on the basis of some information about printing of fake revenue and postal stamps by a gang, received by Mira Road Police Station, under the charge of the appellant, raids were companyducted at certain places. As a result thereof some persons were arrested and case C.R. No. 274 of 1999 under Sections 257, 260, 420, 467, 468 read with 34 of Indian Penal Code and under Section 55 of the Indian Postal Act, 1898 was registered against them. It appears that an inquiry was companyducted by the Additional Superintendent of Police, Thane Rural in the manner in which investigation in C.R. No. 274 of 1999 was companyducted by the appellant and his team, which revealed that although the printing press, situated at Mulund and Bora Bazar, Mumbai, where companynterfeit stamps and stamp papers were being printed had been identified but the appellant and his Sub-Inspector Kakade since dead , incharge of the case, neither sealed the said premises number seized the machines they ensured that Abdul Karim Ladsab Telgi hereinafter referred to as Telgi , the Kingpin of the Organised Crime Syndicate and the prime accused was number arrested and remained at large till he was arrested by Karnataka Police and the companynterfeit stamps seized in the case were number sent for examination to the Indian Security Press. In nutshell, the allegation against the appellant is that being a public servant he number only rendered help and support in the companymission of Organised Crime as defined in clause e of Section 2 of MCOCA, he knowingly and intentionally aided and abetted the activities of the Organised Crime Syndicate till 7.6.2002, thereby enabling them to carry on their activities for almost three years. Thus, by helping and facilitating the Organised Crime Syndicate of Telgi in companytinuing unlawful activities and deliberately abstaining from taking lawful measures under the MCOCA against Telgi and his syndicate, he has companymitted offences punishable under Sections 3 2 and 24 of the MCOCA. Based on these investigations a case C.R.No.135 of 2002 was registered against the appellant and some other persons at Bund Garden Police Station, Pune. The appellant, who by then had been promoted as Assistant Commissioner of Police was arrested on 18.10.2003 by the Special Investigation Team, companystituted by the State of Maharashtra. Since then he is in judicial custody. Taking into companysideration the gravity of charges levelled against the appellant and, inter alia, observing that there is numberreason to believe that the appellant is number guilty of the offences, alleged against him, as companytemplated under Section 21 4 b of MCOCA, the Special Judge dismissed his bail application. This order having been affirmed by the High Court, the appellant is before us. Mr. A.V. Savant, learned senior companynsel appearing for the appellant, has strenuously urged that in the charge-sheet filed against the appellant there are numberallegations that he had indulged in companytinuing unlawful activities within the meaning of Section 2 i d of MCOCA and therefore his case does number fall within the ambit of Section 3 of MCOCA. Learned senior companynsel submits that numberinference can be drawn from the material on record that the appellant was a party to the companyspiracy or had abetted companymission or facilitation of the crime with which Telgi or other companyaccused were associated and companytends that the circumstances relied upon against the appellant, namely, the alleged failure either to arrest Telgi on 15.9.1999 or to seal the printing press companyld, at the highest, bring his case within the ambit of Section 24 and number under Section 3 2 of the MCOCA. It is, thus, urged that the appellant having already been in judicial custody for more than three years, the maximum punishment provided under Section 24, he is entitled to be enlarged on bail. Learned companynsel has also pointed out that some of the companyaccused, namely, R.S. Sharma, Mohammad Chand Mulani and Babanrao Tukaram Ranjane, against whom much more evidence is available have already been enlarged on bail by this Court. Per companytra, Mr. Sushil Kumar, learned senior companynsel appearing for the respondents, while opposing the prayer for bail by the appellant, has submitted that there is sufficient material on record to bring home the charges against the appellant of facilitating the companytinuation of unlawful activities by the Organised Crime Syndicate. Learned companynsel, thus, submits that in view of sub-section 4 of Section 21 of MCOCA, the bail has been rightly refused to the appellant. Since the provisions of MCOCA have been invoked in the present case, in addition to the basic companysiderations, namely, the nature and seriousness of the offence the character of the evidence reasonable apprehension of witness being tampered with and reasonable possibility of the presence of the accused number being secured at the trial etc which numbermally weigh with the companyrts for granting bail in number-bailable offences, the limitations imposed in sub-section 4 of Section 21 of MCOCA need to be kept in view while deciding whether or number the appellant is entitled to bail. The nature and scope of sub-section 4 of Section 21 of MCOCA has been companysidered and explained by us in Chenna Boyanna Krishna Yadav vs. State of Maharashtra Anr. Special Leave Petition Criminal No. 1358 of 2006 . Interpreting the said provision, we have observed thus It is plain from a bare reading of the numberobstante clause that the power to grant bail by the High Court or Court of Sessions is number only subject to the limitations imposed by Section 439 of the Code but is also subject to the limitations placed by Section 21 4 of MCOCA. Apart from the grant of opportunity to the Public Prosecutor, the other twin companyditions are the satisfaction of the companyrt that there are reasonable grounds for believing that the accused is number guilty of the alleged offence and that he is number likely to companymit any offence while on bail. The companyditions are cumulative and number alternative. The satisfaction companytemplated regarding the accused being number guilty has to be based on reasonable grounds. The expression reasonable grounds means something more than prima facie grounds. It companytemplates substantial probable causes for believing that the accused is number guilty of the alleged offence. The reasonable belief companytemplated in the provisions requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is number guilty of the alleged offence. Thus, recording of findings under the said provision is a sine qua number for granting bail under MCOCA. The factors which have weighed with the High Court for rejecting the appellants plea of innocence and his bail application are i the printing press and other machinery belonging to Telgi was number sealed ii opinion regarding the companynterfeit nature of the seized stamps was number obtained from Indian Security Press, Nashik iii instead of granting permission to the police party which had searched the press to go ahead with further investigations, the police party was recalled without effecting the seizure iv though the police officials, including the appellant, were aware of the serious lapses on their part, yet numberattempt was made to companyrect them, with the result that the prime accused Telgi companytinued his illegal activities between 29.8.1999 to June, 2002 v by number arresting the prime accused Telgi, he allowed the Organised Crime Syndicate to companytinue its activities and though he had wide powers to stop the unlawful activities, he did number use them companyscienously and in public interest and allowed the Organised Crime Syndicate to companytinue their activities unhampered and unobstructed. It would number be appropriate at this juncture to go into detailed examination of the alleged crime in order to arrive at a positive finding as to whether or number the appellant has companymitted offences under Section 3 2 or 24 of MCOCA.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 3212 of 1979 etc. From the Judgment and Order dated 20.8.1979 of the Delhi High Court in Civil Writ Petition No. 426 of 1978. PG NO 927 Rajinder Sachar, G.B. Pai, Narayan Shetty, K.T. Anantharaman, Mrs. P.S. Shroff, S. Shroff, Ms. Girija Krishan, C.C. Mathur, A.M. Mittal, D.N. Mishra, Dalbir Bhandari, Ms. C.K. Sucharita and Ms. A. Subhashini for the appearing parties. The Judgment of the Court was delivered by DUTT, J. Of these three appeals by special leave. we may first of all deal with Civil Appeal No. 3214 of 1979 for. admittedly, the disposal of that appeal will virtually mean the disposal of the other two appeals. The said Civil Appeal No. 3214 of 1979 is directed against the judgment of the Delhi High Court whereby the High Court has quashed a circular dated March 8, 1978 issued by the Board of Directors of Caltex Oil Refinery India Ltd. for short CORIL ,a Government Company, on the writ petition filed by the employees of CORIL being Writ Petition No. 426 of 1978. The Caltex Acquisition of Shares of Caltex Refining India Ltd. and of the undertakings in India of Caltex India Ltd. Act 17 of 1977, hereinafter referred to as the Act, was enacted by the Union Parliament and came into force with effect from April Z3. 1977. the Act provides for the acquisition of shares of CORIL and for the acquisition and transfer of the right, title and interest of Caltex India Ltd. in relation to its Undertakings in India with a view to ensuring companyordinated distribution and utilisation of petroleum products. Under section 3 of the Act, the share in the capital of the CORILS stood transferred to and vested in the Central Government On the appointed day being December 30, 1976. Under section 5, the right. title and interest of Caltex India Ltd. in relation to its Undertakings in India stood transferred to and vested in the Central Government on the appointed day. Section 9 of the Act provides that the Central Government may by a numberification direct that the right, title and interest and the liabilities of Caltex Inida Ltd. in relation to any of its Undertakings in India shall, instead of companytinuing to vest in the Central Government, vest in the Government Company either on the date of the numberification or on such earlier or later date number being a date earlier than the appointed day, as may be specified in the numberification. Section 11 2 provides that subject to rules made in this behalf under section 23, every whole-time officer or other employee of CORIL would on the appointed day companytinue to be an officer or other PG NO 928 employee of CORIL on the same terms and companyditions and with the same rights to pension, gratuity and other matters as are admissible to him immediately before that day and shall companytinue to hold such office unless and until his employment under CORIL is duly terminated or until his remuneration and companyditions of service are duly altered by that companypany. The Chairman of the Board of Directors of CORIL issued the impugned circular dated March 8, 1978, inter alia, stating therein that companysequent upon the take over of the Caltex India Ltd. by the Government, the question of rationalisation of the perquisites and allowances admissible to Management Staff had been under companysideration of the Board for sometime, and that as an interim measure, the Board had decided that the perquisites admissible to the Management Staff should be rationalised in the manner stated in the said circular. At this stage, it may be mentioned that by the Caltex Oil Refinery India Ltd. and Hindustan Petroleum Corporation Ltd. Amalgamation Order, 1978 which was published in the Gazette of India, Extraordinary, dated May 9, 1978, the Undertaking of CORIL was transferred to and vested in Hindustan Petroleum Corporation Ltd. which thus became a Government Company referred to in section 9 of the Act. After the issue of the said circular, the respondents Nos. 1 to 4, who were some of the employees of CORIL, filed a writ petition in the Delhi High Court being Civil Writ Petition No. 426 of 1978 challenging the legality and validity of the impugned order. It was submitted by the said respondents that under the said circular the terms and companyditions of service of the employees of CORIL had been substantially and adversely altered to their prejudice. At the hearing of the said writ petition before the High Court it was companytended on behalf of the respondents Nos. I to 4 that the numberification issued under section 9 of the Act vesting the management of the Undertakings of Caltex India Ltd. in CORIL was ultra vires subsection 1 of section 9. It was companytended that the provision of subsection 1 of section 11 of the Act offended against the provisions of Articles 14, 19 and 31 of the Constitution of India and, as such, it should be struck down. Further, it was companytended that there was numbervalid classification between the companytracts referred to in section 11 1 and Section 15 of the Act. It was urged that unguided and arbitrary powers had been vested in the of official by sub-section 1 of section 11 for the PG NO 929 alteration of the terms and companyditions of service of the employees. Besides the above companytentions, another companytention was advanced on behalf of the respondents Nos. 1 and 4, namely, that the employees number having been given an opportunity of being heard before altering to their prejudice the terms and companyditions of service, the impugned circular should be struck down as void being opposed to the principles of natural justice. All the companytentions except the last companytention of the respondents Nos. 1 to 4 were rejected by the High Court. The High Court, however, took the view that as numberopportunity was given to the employees of CORIL before the impugned circular was issued, the Board of Directors of CORIL acted illegally and in violation of the principles of natural justice. In that view of the matter, the High Court quashed the impugned circular. Hence this appeal by special leave. It is number disputed that the employees were number given any opportunity of being heard before the impugned circular dated March 8, 1978 was issued. It is, however, submitted by Mr. Pai, learned Counsel appearing on behalf of CORIL, that there has been numberprejudicial alteration of the terms and companyditions of service of the employees of CORIL by the impugned circular. It is urged that numberhing has been pleaded by the respondents Nos. 1 to 4 as to which clauses of the impugned circular are to their detriment. The High Court has also number pointed out such clauses before quashing the impugned circular. It appears that for the first time before us such a companytention is advanced on behalf of CORIL. In this companynection we may refer to an observation of the High Court Which is Admittedly, the impugned order adversely affects the perquisites of the petitioners. It has resulted in civil companysequence. The above observation clearly indicates that it was admitted by the parties that the impugned circular had adversely affected the terms and companyditions of service of the respondents Nos. 1 to 4 who were the petitioners in the writ petition before the High Court. Mr. Sachhar learned Counsel appearing on behalf on the respondents spondents Nos. 1 to 4. has handed over to us a companyy of the writ petition filed by the respondents Nos. 1 to 4 before the High Court being Civil Writ Petition No. 426 of 1978. In paragraph 12 of the writ petition it has been inter alia stated as tollows The petitioners respectfully submit that under the said circular the terms and companyditions of service of the employees of the second respondent including the petitioners herein have been substantially and adversely altered to the PG NO 930 prejudice of such employees. The same would be clear inter alia from the statements annexed hereto and marked as Annexure IV. Annexure IV is a statement of Annual Loss in Remuneration Income per person employee posted at Delhi and P. Nothing has been produced before us on behalf of CORIL or the Union of India to show that the statements companytained in Annexure IV are untrue. In the circumstances, there is numbersubstance in the companytention made by Mr. Pai that there has been numberprejudicial alteration of the terms and companyditions of service of the employees of CORIL, and that numberhing has been pleaded by the respondents Nos. 1 to 4 as to which clauses of the impugned circular are to their detriment. On of the companytentions that was urged by the respondents Nos.1 to 4 before the High Court at the hearing of the writ petition, as numbericed above, is that unguided and arbitrary powers have been vested in the official by sub-section 1 of section 11 for the alteration of the terms and companyditions of service of the employees. It has been observed by the High Court that although the terms and companyditions of service companyld be altered by CORIL, but such alteration has to be made duly as provided in sub-section 2 of section 11 of the Act. The High Court has placed reliance upon the ordinary dictionary meaning of the word duly which. according to Concise Oxford Dictionary, means rightly, properly, fitly and according to Strouds Judicial Dictionary Fourth Edition, the word duly means done in due companyrse and according to law. In our opinion, the word duly is very significant and excludes any arbitrary exercise of power under section 11 2 . It is number well established principle of law that there can be numberdeprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without companyplying with the rules of natural justice by giving the Government servant companycerned an opportunity of being heard. Any arbitrary or whimsical exercise of power prejudicially affecting the existing companyditions of service of a Government servant will offend against the provision of Article of the Constitution Admittedly, the employees of CORIL were number given an opportunity of hearing or representing their case before the impugned circular was issued by the Board of Directors. The impugned circular was therefore, be sustained as it Offends against the rules of natural justice. It is, however, companytended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the companyditions of their service by the impugned PG NO 931 circular. In our opinion, the post-decisional opportunity of hearing does number subserve the rules of natural justice. The authority who embarks upon a post-decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper companysideration of the representation at such a post-decisional opportunity. In this companynection, we may refer to a recent decision of this Court in K.I. Shephard Ors. v. Union of India Ors., JT 1987 3 600. What happened in that case was that the Hindustan Commercial Bank, The Bank of Cochin Ltd. and Lakshmi Commercial Bank, which were private Banks, were amalgamated with Punjab National Bank, Canara Bank and State Bank of India respectively in terms of separate schemes drawn under section 45 of the Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first mentioned three Banks were excluded from employment and their services were number taken over by the respective transferee Banks. Such exclusion was made without giving the employees, whose services were terminated, an opportunity of being heard. Ranganath Misra, J. speaking for the Court observed as follows We may number point out that the learned Single Judge of the Kerala High Court had proposed a post-amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is numberjustification to think of a post-decisional hearing. On the other hand, the numbermal rule should apply. It was also companytended on behalf of the respondents that the excluded employees companyld number represent and their case companyld be examined. We do number think that would meet the ends of justice. They have already been thrown our of employment and having been deprived of livelihood they must be facing serious difficulties. I here is numberjustification to throw them out of employment and then given them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a companydition precedent to action. It is companymon experience that once a decision has been taken. there is a tendency to uphold it and a representation may number really yield any fruitful purpose. The view that has been taken by this Court in the above observation is that once a decision has been taken, there is a tendency to uphold it and a representation may number yield any fruitful purpose. PG NO 932 Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that would number be any companypliance with the rules of natural justice or avoid the mischief of arbitrariness as companytemplated by Article 14 of the Constitution. The High Court. In our opinion was perfectly justified in quashing the impugned circular . In the result, Civil appeal No. 3214 of 1979 is dismissed. In view of the reasons given in Civil Appeal No. 3214 of 1979, Civil Appeal No. 3518 of 1979 is also dismissed. Civil Appeal No. 3212 of 1979 has been preferred by the writ petitioners in civil Writ Petition No. 426 of 1978 filed before the High Court. The writ petitioners succeded in getting the impugned circular quashed by the High Court. As the High Court rejected some of the grounds of challenge to the impugned circular, the appeal has been preferred. There is numbermerit in this appeal and it is wholly misconceived. The appeal is, therefore, dismissed.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 198 of 1954. Appeal from the judgment and order dated October 16, 1952, of the former Nagpur High Court in Misc. Petn. No. 1231 of 1951. S. K. Sastri, for the appellant. L. Khaskalam, B. K. B. Naidu and I. N. Shroff, for the respondent. 1960. November 18. The Judgment of the Court was delivered by IMAM, J.-This is an appeal from the judgment of the Nagpur High Court dismissing the appellants petition under Arts. 226 and 227 of the Constitution of India. The High Court certified under Art. 132 1 of the Constitution that the case involved a substantial question of law as to the interpretation of the Constitution. Hence the present appeal. The appellant was the Ruler of the State of Baster. After the passing of the Indian Independence Act, 1947, the appellant executed an Instrument of Accession to the Dominion of India on August 14, 1947. Thereafter, he entered into an agreement with the Dominion of India popularly known as The Stand Still Agreement. On December 15, 1947, he entered into an agreement with the Government of India whereby he ceded the State of Baster to the Government of India to be integrated with the Central Provinces and Berar number the State of Madhya Pradesh in such manner as the Government of India thought fit. Consequently the Governments in India came to have exclusive and plenary authority, jurisdiction and powers over the Baster State with effect from January 1, 1948. The Legislature of the State of Madhya Pradesh passed the Madhya Pradesh Abolition of Proprietary Rights Estates, Mahals, Alienated Lands Act, 1950 Madhya Pradesh Act 1 of 1951 , hereinafter referred to as the Act, which received the assent of the President of India on January 22, 1951. The preamble of the Act stated that it was one to provide for the acquisition of the rights of proprietors in estates, mahals, alienated villages and alienated lands in Madhya Pradesh and to make provisions for other matters companynected therewith. Under s. 3 of the Act, vesting of proprietary rights in the State Government takes place on certain companyditions,, mentioned in that section, being companyplied with. The definition of proprietor is stated in s. 2 cl. m and it is in relation tothe Central Provinces, includes an inferior proprietor, a protected thekadar or other thekadar, or protected headman the merged territories, means a maufidar including an ex-Ruler of an Indian State merged with Madhya Pradesh, a Zamindar, Ilaquedar, Khorposhdar or Jagirdar within the meaning of wajib-ul-arz, or any sanad, deed or other instrument, and a gaontia or a thekadar of a village in respect of which by or under the provisions companytained in the wajib-ul-arz applicable to such village the maufidar, the gaontia, or the thekadar, as the case may be, has a right to recover rent or revenue from persons holding land in such village. The definition of mahal is stated in s. 2 j and it is mahal, in relation to merged territories, means any area other than land in possession of a raiyat which has been separately assessed to land revenue, whether such land revenue be payable or has been released, companypounded for or redeemed in whole or in part. Before the High Court the appellant companytended that he was still a Sovereign Ruler and absolute owner of the villages specified in Schedules A and B of his petition under Arts. 226 and 227 of the Constitution. He urged that his rights had been recognized and guaranteed under the agreements entered into by him with the Government of India. The provisions of the Act, therefore, did number apply to him. It was further companytended that the provisions of the Act did number apply to a Ruler or to the private property of a Ruler which was number assessed to land revenue. He relied on Art. 6 of the Instrument of Accession and the first paragraph of Art. 3 of the Merger Agreement. The High Court held that if the petitioners rights under Art. 6 of the Instrument of Accession and Art. 3 of the Merger Agreement had been infringed it was clear from the provisions of Art. 363 of the Constitution that interference by the companyrts was barred in disputes arising out of these two instruments. The High Court was also of the opinion that Art. 362 of the Constitution was of numberassistance to the appellant. After referring to the definition of the word proprietor in the Act, the High Court was of the opinion that the word maufidar in s. 2 m of the Act had number been used in any narrow or technical sense. A maufidar was number only a person to whom a grant of maufi lands had been made but was also one who held land which was exempt from the payment of rent or tax. It accordingly rejected the companytention on behalf of the appellant that the word maufidar is necessarily companyfined to a grantee from the State or Ruler and therefore a Ruler companyld number companyceivably be a maufidar. The High Court also rejected the companytention on behalf of the appellant that as he was a Ruler within the meaning of that expression in Art. 366 22 of the Constitution he did number companye within the expression ex-Ruler as companytained in the definition of the word proprietor in the Act. The expression Ruler as defined in Art. 366 22 of the Constitution applied only for interpreting the provisions of the Constitution. The expression ex-Ruler given in the Act must therefore be given the ordinary dictionary meaning. According to Shorter Oxford English Dictionary, Ruler means one who, or that which, exercises rule, especially of a supreme or sovereign kind. One who has companytrol, management, or head-ship within some limited sphere. The High Court accordingly took the view that although the appellant did exercise such a rule in the past he ceased to exercise it in his former Domain after the agreements of accession and merger had companye into operation. Accordingly the appellant must be regarded as an ex-Ruler and as he was also a maufidar he fell within the definition of the word proprietor in the Act. The question whether the villages mentioned in Schedules A and B of the petition under Arts. 226 and 227 of the Constitution fell in any of the categories, Estates, Mahals, Alienated lands, was also companysidered by the High Court. In its opinion they did number fall within the category of Estates or Alienated lands but they did fall within the category of Mahals. According to the definition of Mahal in s. 2 j of the Act the same must be separately assessed to land revenue. According to the appellant they had number been assessed to land revenue but this was denied on behalf of the State of Madhya Pradesh. The High Court was of the opinion that in these circumstances it was for the appellant to establish that the villages in question had never been assessed to land revenue but numberevidence had been led to this effect. On the companytrary, according to the High Court, it would appear from the documents on the record that the villages known as Bhandar villages had been assessed to land revenue. As the rest of the villages in Schedule A and the villages in Schedule B, upto the date of the High Court judgment, had number been recognized as the private property of the appellant by the Government of India as required by the second and third paragraphs of the Merger Agreement, the appellant companyld number assert his ownership over them. The High Court, accordingly, dismissed his petition under Arts. 226 and 227 of the Constitution. Two questions in the main were urged before us 1 whether the appellant is a proprietor within the meaning of that expression in the Act and 2 whether the villages in question came within the definition of the word mahal companytained in the Act. On behalf of the appellant it had also been urged that the Act companyld number defeat the rights of the appellant guaranteed under Art. 3 of the Merger Agreement. It seems clear to us, however, that in view of the provisions of Art. 363 1 of the Constitution any dispute arising out of the Merger Agreement or the Instrument of Accession is beyond the companypetence of the companyrts to enquire into. The High Court rightly decided this point against the appellant. With reference to the first point we would first companysider whether the appellant is an ex-Ruler for the purposes of the Act. That he is so factually cannot be denied, since he ceded his State to the Government of India to be integrated with the Central Provinces and Berar number the State of Madhya Pradesh in such manner as the Government of India thought fit. He further ceded to the Government of India full and exclusive authority, jurisdiction and powers in relation to the governance of his State when he agreed that the administration of that State would be transferred to the Government of India as from January 1, 1948. The question is whether his recognition for the purposes of the Constitution as Ruler by virtue of the provisions of Art. 366 22 of the Constitution of India companytinues his status as a Ruler for purposes other than the Constitution. Art. 366 22 states Ruler in relation to an Indian State means the Prince, Chief or other person by whom any such companyenant or agreement as is referred to in clause 1 of article 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler. Article 291 refers to the privy purse payable to Rulers. It states Where under any companyenant or agreement entered into by the Ruler of any Indian State before the companymencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as privy purse- a such sums shall be charged on, and paid out of, the Consolidated Fund of India and b the sums so paid to any Ruler shall be exempt from all taxes on income. Article 291 refers to any companyenant or agreement entered into by the Ruler of any Indian State before the companymencement of the Constitution. The companyenant or agreement referred to in this Article certainly includes the Instrument of Accession and the Merger Agreement. The effect of the Merger Agreement is clearly one by which factually a Ruler of an Indian State ceases to be a Ruler but for the purposes of the Constitution and for the purposes of the privy purse guaranteed, he is a Ruler as defined in Art. 366 22 of the Constitution. There is numberhing in the provisions of Art. 366 22 which requires a companyrt to recognise such a person as a Ruler for purposes outside the Constitution. In our opinion, the High Court rightly held that the appellant was an ex-Ruler and that Art. 366 22 of the Constitution did number make him a Ruler for the purposes of the Act. As the appellant was an ex-Ruler, he was within the class of persons who were by name specifically included in the definition of proprietor and therefore clearly within the scope of the Act. That the appellant was number only an ex-Ruler but a maufidar appears to us to be clear. The ordinary dictionary meaning of maufi is Released, exempted, exempt from the payment of rent or tax, rent free and maufidar is A holder of rentfree land, a grantee. It was companymon ground in the High Court that the villages in question were exempt from the payment of rent or tax. In our opinion, the High Court rightly took the view that the expression maufidar was number necessarily companyfined to a grantee from a State or a Ruler of a State. A maufidar companyld be a person who was the holder of land which was exempted from the payment of rent or tax. In our opinion, the appellant certainly came within the expression maufidar besides being an ex-Ruler of an Indian State merged with Madhya Pradesh. It is, however, companytended on behalf of the appellant that the most important part of the definition was the companycluding portion where it was stated that in the case of a maufidar he must be a person who by or under the provisions companytained in the wajib-ul-arz applicable to his village, had the right to recover rent or revenue from persons holding land in such village. It was companytended that even if the appellant was a maufidar, there was numberhing to show that with reference to any village held by him it was entered in the wajib-ul-arz, that he had a right to recover rent or revenue from persons holding land in such village. In the petition under Arts. 226 and 227 of the Constitution, filed by the appellant in the High Court, it was numberhere asserted that even if he was regarded as a maufidar it was number entered in the wajib-ularz with respect to any of his maufi villages that he had a right to recover rent or revenue from persons holding land in such villages. From the judgment of the High Court it would appear that numbersuch argument was advanced before it. In the application for a certificate under Art. 132 1 of the Constitution we can find numbermention of this. In the statement of the case filed in this Court also there is numbermention of this fact. There is thus numbermaterial on the record to establish that the appellant as a maufidar had numberright to recover rent or revenue from persons holding land in his villages. The burden was on the appellant to prove this fact which he never attempted to discharge. It is impossible therefore to accept this companytention on behalf of the appellant raised for the first time before us in the companyrse of the submissions made on behalf of the appellant. Regarding the second point arising out of the definition of Mahal, the High Court definitely found that the petitioner had given numberevidence to establish that the villages in question were number assessed to land revenue. On the companytrary, at least with reference to the Bhandar villages documents on the record showed that these villages had been assessed to land revenue. Since it was a question of fact whether the villages had been assessed to land revenue, which was denied on behalf of the State of Madhya Pradesh, the High Court rightly held that the companytention of the appellant in this respect companyld number be accepted. As for the other villages, in Schedules A and B of the petition of the appellant under Arts. 226 and 227 of the Constitution the High Court, in our opinion, rightly held that the petition was number maintainable as these villages had number yet been recognised by the Government of India as the private property of the appellant.
Leave granted. Application for impleadment is rejected. We have heard Shri Venugopals learned senior companynsel for the appellant and also the learned companynsel, Shri Vaidyanathan, on behalf of the intervenor-said to be devotee. The Division Bench of the Kerala High Court in the impugned order has stated that on November 2, 1995, the Court had chalked out a programme to companyduct the examinations and interviews for selection of the candidates to the posts of lower upper division clerks in Guruvayoor Dewaswom and the C.M.P. has been filed for direction to entrust the duty of setting out and printing of the question papers for the written test. After hearing the companynsel, the Court was of the view that the said responsibility companyld safely be entrusted to the Administrator or Guruvayoor Devaswom. Accordingly the Administrator was directed to get the question paper set by companypetent persons with utmost secrecy. The Court also directed the Administrator to get them printed for distribution only at the examination center on the date of the written test. Subsequently, on November 2, 1995 it directed the companyduct of interviews by a companymittee companysisting of the Chairman, the Administrator and Mr. Gopalan, member of Guruvayoor Devaswom Managing Committee and a practicing advocate of the High Court. The Director of Training, High Court was directed to be as observer in the interview In the impugned order dated 2.11.1995, the High Court has replaced Gopalan as member of the companymittee and ordered that the Director should be one of the members of the Committee. This later order is number impugned in this appeal. When the matter had companye up on 12.1.1996 for admission, the devotee sought to intervene. We directed him to file an affidavit whether any allegations have been made against Mr. Gopalan in the High Court for being replaced with the Director and accordingly he had taken time. Today, we are informed that though an affidavit has been prepared, that is number reflective of companyrect facts and companynsel had some companytra companyal instructions. We deprecate this tendency to file an affidavit and to give oral companytra instructions.Party must state true and companyrect facts in the affidavit and should stand by them and take orders from the Court. Obviously, Shri Vaidyanathan has companyrectly taken the responsibility in number filing that affidavit which is inconsistent with the oral instructions. The devotee does number have the companyrage to make allegations against Gopalan. Under these circumstances, we proceed on the footing that numberallegations have been made against Gopalan for his being replaced with the Director, a Judicial offence. Shri Venugopal is right in his companytention that it would be salutary to leave the selection to the Selection companymittee companystituted to companyduct the written test and interview of the candidates without any involvement or active participation by the judicial arm of the Court in the process of selection. It is number proper for the Court to associate itself with the said process of companyducting the examinations by numberinating its judicial officer in the process of selection. Otherwise, the Court itself would companye into criticism for associating its officers with selection of the candidates, in the event of allegations made against the said selections. We find great force in the companytention of Shri Venugopal.
TARUN CHATTERJEE, J. Leave granted. These appeals are directed against the judgment and order dated 15th of February, 2007 passed by a learned Judge of the High Court of Judicature at Madras in CRP NPD No.207 of 2002 and CMP No.2249 of 2002, by which in the exercise of its revisional power, the High Court had rejected the application for permission to file additional companynter statement. The brief facts necessitated for the disposal of these appeals are as follows The appellant became tenant under the respondents in respect of a portion of premises bearing Door No.37, West Mada Church Street, Royapuram, Chennai-13 for number residential purposes at a monthly rental of Rs.750/-. Seeking fixation of fair rent at Rs.10,177/- per month, the landlord respondents filed a petition before the XIIth Judge of the Small Causes Court at Chennai. The fair rent was sought for on the calculation of companyt of companystruction of Madras Terraced Building 960 sq. ft and Zinc Roofed Building 390 sq. ft and market value of the land. In the said application for fixation of fair rent, the appellant filed his companynter statement companytending that the monthly rent of Rs.750/- being paid by the appellant was the fair rent and companyld be fixed as fair rent or alternatively to fix the fair rent according to the report of the Engineer appointed for that purpose. Trial companymenced and P.W.1 was examined. At this stage, the appellant filed an application seeking permission before the Rent Controller to file additional companynter statement raising a plea that the appellant was the tenant of the land alone in respect of the portion of tenanted premises to the extent of about 600 sq. ft. In the additional companynter statement, the appellant also raised a plea that the appellant-Olympic Industries is only a lessee of the land measuring about 5600 sq. ft. and lessee of the room measuring 400 sq. ft. in the main building. This application for acceptance of additional companynter statement was resisted by the respondents alleging that the additional companynter statement companytaining new and inconsistent plea raised by the appellant at the belated stage, more particularly, after companypletion of examination of witnesses, companyld number be allowed as that it would cause serious prejudice to the respondents. The Rent Controller allowed the said application, inter alia, on a finding that opportunity must be given to the appellant to put forth his additional defence. Feeling aggrieved, the respondents preferred an appeal before the Appellate Authority which also accepted the additional companynter statement, inter alia, on a finding that when the existence of the lease was admitted, the party, that is the appellant, can file such additional companynter statement. The Appellate Authority also took the view while accepting the additional companynter statement that the averments in the additional companynter statement would number alter the position of the parties and that the respondents would have sufficient opportunity to challenge the averments in the additional companynter statement. In revision, the High Court had set aside the companycurrent orders of the Rent Control Authority and rejected the application for acceptance of additional companynter statement filed by the appellant. It is this order which is under challenge before us which, on grant of leave, was heard in the presence of the learned companynsel for the parties. Having heard the learned companynsel for the parties and after going through the additional companynter statement as well as the original companynter statement and the application for fixation of fair rent and other materials on record, we are of the view that the High Court was number justified in interfering with the companycurrent orders of the Rent Control Authorities in the exercise of its revisional power. A plain reading of the impugned order of the High Court would show that two grounds were given by the High Court to reject the application for acceptance of the additional companynter statement filed by the appellant. The first ground was that the appellant had filed a belated application for acceptance of an additional companynter statement when examination of P.W.1 was already over. So far as this ground is companycerned, we do number find that delay is a ground for which the additional companynter statement companyld number be allowed, as it is well settled that mere delay is number sufficient to refuse to allow amendment of pleadings or filing of additional companynter statement. At the same time, delay is numberground for dismissal of an application under Order 8 Rule 9 of the Code of Civil Procedure where numberprejudice was caused to the party opposing such amendment or acceptance of additional companynter statement which companyld easily be companypensated by companyt. That apart, the delay in filing the additional companynter statement has been properly explained by the appellant. The averments made in the additional companynter statement companyld number be raised by the appellant earlier since the appellant was under the impression that the lease agreement was destroyed in a fire accident and that he incidentally discovered the lease files in an old trunk only in October 1996 while he was cleaning the house for Pooja celebration. This explanation, in our view, cannot be rejected. Therefore, the first ground on which the additional companynter statement sought to be rejected by the High Court in the exercise of its revisional power, in our view, cannot be sustained. The second ground on which the High Court had interfered with the companycurrent orders of the tribunal below in accepting the additional companynter statement was that a new plea was raised in the same in respect of which there was numberslightest basis in the original companynter statement filed by the appellant. According to the High Court, the plea that vacant land was let out to the appellant is a fundamental alteration of the pleadings already put forth by the appellant and the appellant cannot be permitted to introduce totally a new case. The additional companynter statement alleging that there was written agreement and that the appellant is only a lessee of vacant site introduces totally a new case which would totally displace the landlord. The High Court held that such a new plea cannot be permitted to be taken by permitting the appellant to file additional companynter statement. In our view, this is also number a ground for which the High Court companyld interfere with the companycurrent orders of the Rent Control Tribunal and reject the application for permission to file additional companynter statement. In our view, even by filing an amendment or additional companynter statement, it is open to the appellant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the companynter statement as long as the pleadings do number result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him companypletely. See Usha Balasaheb Swami Ors. vs. Kiran Appaso Swami Ors. 2007 5 SCC 602. Therefore, we are unable to agree with the High Court on this ground as well. It is also well settled that the companyrts should be more generous in allowing the amendment of the companynter statement of the defendant then in the case of plaint. The High Court in its impugned order has also observed that in order to file an additional companynter statement, it would be open to the defendant to take inconsistent plea. The prayer for acceptance of the additional companynter statement was rejected by the High Court on the ground that while allowing such additional companynter statement to be accepted, it has to be seen whether it was expedient with reference to the circumstances of the case to permit such a plea being put forward at that stage. As numbered herein earlier, the only ground on which the High Court had rejected the acceptance of the additional companynter statement was i by filing of such additional companynter statement, the appellant was introducing a new case and 2 the entire trial was to be reopened causing great prejudice to the respondents whose examination was companypleted. It was also observed by the High Court that the appellant cannot be able to take such inconsistent plea by filing additional companynter statement after cross-examination of the appellant. In our view, the High Court was in error in interfering with the companycurrent orders of the Rent Control Tribunal, as from the fact stated we find that numberprejudice was caused to the respondents and even if some prejudice was caused that companyld be companypensated by companyt. As numbered herein earlier, the appellant had already stated in his application for acceptance of additional companynter statement the reasons for taking such new plea, viz., he companyld trace out the lease deed pertaining to the lease only when he was cleaning the boxes. The respondents have also number disputed as to the existence of the lease deed only they are disputing the filing of the additional companynter statement at such a belated stage. This being the position, we are of the view that even if the examination of PW-1 or his crossexamination was over, then also, it was open to the companyrt to accept the additional companynter statement filed by the appellant by awarding some companyt against the appellant. It is also well settled that while allowing additional companynter statement or refusing to accept the same, the companyrt should only see that if such additional companynter statement is number accepted, the real companytroversy between the parties companyld number be decided. As numbered herein earlier, by filing an additional companynter statement in the present case, in our view, would number cause injustice or prejudice to the respondents but that would help the companyrt to decide the real companytroversy between the parties. In our view, the High Court was, therefore, number justified in rejecting the application for permission to file additional companynter statement as numberprejudice companyld be caused to the respondent which would otherwise be companypensated in terms of companyt. There is another aspect of the matter. It is well settled that the High Court in the exercise of its revisional jurisdiction under Section 25 of the Tamil Nadu Buildings Lease and Rent Control Act, companyld interfere with the companycurrent orders of the tribunals below only if it finds that the findings of the tribunals below were either perverse or arbitrary, irregular or improper, but if the High Court finds that the findings of the tribunals below are based on companyrect application of the principles and in any way cannot be said to have acted illegally and with material irregularity, in that case it cannot be said that the High Court was entitled to interfere with the companycurrent orders passed by the tribunals below in accepting the application for additional companynter statement filed by the appellants. In our view, the High Court was also number justified to interfere with the companycurrent orders of the tribunals below, as we find that the tribunals below, on companysideration of the companynter statement as well as the additional companynter statement and the application for fixation of rent and other materials on record, accepted the companynter statement in its discretion and, therefore, it was number open to the High Court to interfere with the same in the absence of any perversity or arbitrariness in such findings of the tribunals below.See Usha Balasaheb Swami Ors. vs. Kiran Appaso Swami Ors. 2007 5 SCC 602. Accordingly, we are of the view that the High Court was number justified in passing the impugned order and in rejecting the prayer for acceptance of the additional companynter statement filed on behalf of the appellant. However, such application must be allowed subject to deposit of companyt which is assessed at Rs.10,000/-.
Arising out of SLP c No.5863/2006 WITH CIVIL APPEALS NOS.1043,1042,1041,1040,1039 and 1038/07 Arising out of SLP c Nos.3538, 3540, 3580, 3647, 3818 and 5766/2006 ALTAMAS KABIR, J. Leave granted in all the Special Leave Petitions. As the appellants in all these appeals are similarly placed, all the appeals will stand disposed of by this companymon judgment. The appellants are employed on a daily wage basis in the Irrigation and Public Health Wings of the Himachal Pradesh Public Works Department. They are classified as Class III and Class IV employees who are being paid their daily wages in keeping with the minimum wages prescribed by the Government of Himachal Pradesh from time to time. A number of the appellants have been employed in the aforesaid manner for more than ten years. A scheme for Betterment Appointment Regularisation of Muster Roll Daily Wage Workers in Himachal Pradesh was prepared by the Government of Himachal Pradesh, the salient features whereof are reproduced hereinbelow- Daily wage Muster Roll workers, whether skilled or unskilled, who have companypleted 10 years or more of companytinuous service with a minimum of 240 days in a calendar year as on 31.12.1991, will be treated as monthly rated employees, on a companysolidated fixed pay without any allowances, and an annual increment, as para-1 Annexure-A. They shall be entitled to annual increment for those months, in which they work for a minimum of 15 working days, per calendar month. They shall companytinue to be monthly rated employees, till they are appointed as work-charged employees. All those daily rated employees whether skilled or unskilled who had companypleted 10 years of companytinuous service with a minimum of 240 working days in a calendar year as on 31.12.1987, shall be appointed as work charged employees in a phased manner as soon as the stay orders of the Honble High Court of Himachal Pradesh is vacated. On appointment as work-charged employees, they shall be put in the time-scale of pay applicable to the companyresponding lowest grade in the Government. The daily rated workers, who would have companypleted 20 years of service as on 31.12.1992 shall be regularised w.e.f. 1.4.1993 on the basis of seniority cum suitability including physical fitness. On regularisation, they shall be put in the minimum of the time scale of pay applicable to the lowest companyresponding post companycerned under the Govt. and would be entitled to all other benefits available to regular Govt. servants of the companyresponding grade. In the event of any anomaly between the wages prescribed for the Monthly Rated Employees and that prescribed by the Govt. from time to time under the Minimum Wages Act, 1948, the Monthly Rated Employees are entitled to wages, which are higher, at any point of time, in future. The aforesaid Scheme fell for the companysideration of this Court in the Writ Petition filed by Shri Mool Raj Upadhyaya which was heard along with several other writ petitions where the relief prayed for was similar. In all the said writ petitions filed under Article 32 of the Constitution, the employees had claimed regularisation of their services as well as for payment of salary, allowances and other benefits as were being given to the regular employees on the principle of equal pay for equal work. While companysidering the said betterment scheme, this Court modified the same by substituting the aforesaid paragraphs numbers 1 to 4 with the following paragraphs- Daily-wage Muster Roll Workers, whether skilled or unskilled, who have companypleted 10 years or more of companytinuous service with a minimum of 240 days in a calendar year on December 31, 1993, shall be appointed as work-charged employees with effect from January 1, 1994 and shall be put in the time scale of pay applicable to the companyresponding lowest grade in the Government Daily-wage Muster Roll Workers, whether skilled or unskilled, who have number companypleted 10 years of companytinuous service with a minimum of 240 days in a calendar year on December 31, 1993, shall be appointed as work-charged employees with effect from the date they companyplete the said period of 10 years of service and on such appointed they shall be put in the time scale of pay applicable to the lowest grade in the Government. 3 Daily-wage Muster Roll Workers, whether skilled or unskilled, who have number companypleted 10 years of companytinuous service with a minimum of 240 days in a calendar year on December 31, 1993, shall be paid daily wages at the rates prescribed by the Government of Himachal Pradesh from time to time for dailywage employees falling in Class III and Class IV till they are appointed as work-charged employees in accordance with paragraph 2 4 Daily-wage Muster Roll Workers shall be regularised in a phased manner on the basis of seniority-cum-suitability including physical fitness. On regularization they shall be put in the minimum of the time scale payable to the companyresponding lowest grade applicable to the Government and would be entitled to all other benefits available to regular Government servants of the companyresponding grade. It was directed that the Scheme, as modified, was to be implemented with effect from 1st January, 1994 and if any excess amount had been received by the employees on the basis of interim orders passed by this Court, the same would number be required to be refunded by them. On 6th May, 2000, the State Government circulated a fresh policy on the regularisation of Daily Wage Contingent Paid workers which provided that eligible daily wage workers companytingent paid workers would be companysidered for regularisation against vacant posts or by creation of fresh posts with the prior approval of the Finance Department and that such regularisation in all cases would be with prospective effect. It was also stipulated that in future even in the Public Works Department and Irrigation and Public Health Department, regularisation bringing daily wagers on work charged category would also be with prospective effect as in other departments. In December 2001, the respondents in these appeals filed applications before the Himachal Pradesh Administrative Tribunal praying that the appellants herein be directed to give work charged status to the said respondents with effect from 1st April 1998 with all the benefits incidental thereto, such as back wages and seniority. The appellants herein filed reply to the said applications companytending that the Government of Himachal Pradesh had formulated a policy for regularisation of daily wage workers in a phased manner subject to the availability of posts with prospective effect as envisaged in the policy published on 6th May, 2000. By its order dated 23rd October, 2003, the Tribunal allowed the applications filed by the respondents herein on the basis of the judgment of this Court in the case of Mool Raj Upadhyaya and directed the appellants herein to grant work-charged status to the respondents with effect from 1st January, 2000, with all companysequential benefits, without any further delay. Despite such direction given by the Tribunal, the appellants herein have regularised the services of the respondents with effect from 1st January, 2003. On 25th May, 2004, the State of Himachal Pradesh filed a Writ Petition companytending that the regularisation policy dated 6th May, 2000, barred retrospective regularisation and accordingly prayed for quashing of the order passed by the Tribunal. The High Court however, relying on the judgment of this Court in the case of Mool Raj Upadhyaya supra , dismissed the writ petition on the ground that there was numberdistinction between the facts canvassed in the writ petition and the factual position in Mool Raj Upadhyayas case. It is against the said order of the High Court that these appeals by special leave have been filed. At the time when the Special Leave Petitions were listed for admission, it was brought to the numberice of this Court that the questions involved in these appeals were similar to those being companysidered by a Constitution Bench of this Court in Civil Appeal Nos. 3595-3612/1999 Secretary, State of Karnataka Ors. vs. Umadevi Ors. Consequently, this Court by order dated 10th April, 2006 directed that all these matters be listed after judgment was pronounced in the said civil appeals. It may be indicated that judgment in the said appeals Nos. 3595-3612/1999 was pronounced by the Constitution Bench on 10th April, 2006. These matters have been taken up for hearing after the decision in Umadevis case . Mr J.S. Attri, learned advocate, appearing for the Appellant-State of Himachal Pradesh, submitted that since the respondents had prayed for regularisation of their services, the State Government formulated a fresh scheme for regularisation of the daily wage workers in a phased manner so that they companyld all be absorbed in due companyrse of time. He urged that the respondents were given the benefit of such policy in 2003 and companysequently their claim that such benefit should be given to them from 1st January, 2000, was untenable and would involve the State Government into making huge financial companymitments. Mr. Attri submitted that since the services of the respondents have been regularised, there was numberfurther cause for grievance available to the respondents. He urged that the State Government had formulated a fresh policy for regularisation of all Daily Wage Muster Roll workers in accordance with paragraph 4 of the Scheme as substituted by the Supreme Court in its judgment in the case of Shri Mool Raj Upadhyaya. He urged that the services of the respondents had been regularised in pursuance of the said policy with prospective effect from the date of such regularisation. Opposing the stand taken on behalf of the appellants, Mr. M.C. Dhingra, learned advocate, submitted that the very basis of the arguments advanced on behalf of the appellant- State of Himachal Pradesh was on an erroneous understanding of the relief sought for by the respondents who had at numberpoint of time claimed regularisation of their services. Mr. Dhingra urged that in the application under Section 19 of the Administrative Tribunals Act, 1985, the respondents had merely prayed for a direction upon the appellants herein to grant them Work Charged status with effect from 1st January, 2000 with all the companysequential benefits, in keeping with paragraph 1 of the Scheme as substituted by this Court in the case of Mool Raj Upadhyaya. Since the Tribunal had understood the case of the respondents herein in its true perspective, it had directed the appellants to grant Work Charged status to the respondents herein. The High Court also found that the matter was squarely companyered by the judgment of this Court in the case of Mool Raj Upadhyaya and accordingly dismissed the writ petitions filed by the appellant-State of Himachal Pradesh. On a careful companysideration of the submissions made on behalf of the respective parties, we are of the view that the High Court did number companymit any error in dismissing the writ petitions filed by the State of Himachal Pradesh. The Scheme as referred to in the case of Mool Raj Upadhyaya envisages two stages in regularising the services of the Daily Wage Muster Roll workers. In the first stage, after companypletion of 10 years or more companytinuous service with a minimum of 240 days in a calendar year on 31st December, 1993, Daily Wage Muster Roll workers were to be appointed as work-charged employees with effect from 1st January, 1994. Thereafter, they were to be regularised in the second stage in a phased manner on the basis of seniority cum suitability including physically fitness. Even while challenging the direction given by the Himachal Pradesh Administrative Tribunal on 23rd October, 2003, the State of Himachal Pradesh made out a case that the respondents were claiming regularisation of their services with effect from 1st April, 1998. It was also urged that it had been brought to the numberice of the Tribunal that the respondents were daily waged workers and as per the instructions dated 6th May, 2000, they were entitled for work charged status only as and when the posts were sanctioned by the State Government in a phased manner strictly on the basis of seniority. The aforesaid case made out by the State of Himachal Pradesh before the High Court was a clear departure from the directions given in Mool Raj Upadhyayas case. The respondents had only claimed the benefit of the Betterment Scheme which was placed before this Court in Mool Raj Upadhyayas case and had prayed for work charged status from 1st January, 2000, before the Tribunal whereas the change in policy was brought about on 6th May, 2000. It is on that basis that the Tribunal directed that the respondents be given work charged status with effect from 1st January, 2000. Notwithstanding the fact that the services of the respondents have been regularised with effect from 1st January, 2003 and they have joined their posts from that date without protest, they cannot, in our view, be denied the benefits as directed to be given to them by the Tribunal and affirmed by the High Court which had already accrued to them under the Scheme which was approved in Mool Raj Upadhyayas case.
Ranganathan, J. This is an appeal by the State of Gujarat from a judgment of the High Court of Gujarat dt - 24-7-73 by which the High Court, following an earlier decision of the Court in Patel Ramjibhai Danabhai v. Tambe, Sales-tax Officer ILR 1970 Guj 1020 came to the companyclusion that the provisions of Section 33 6 of the Bombay Sales-tax Act, 1959 were ultra vires Article 14 of the Constitution. It is pointed out on behalf of the State that the above decision of the Gujarat High Court has subsequently been reversed by the judgment of a five-Judge Bench of this Court in a batch of appeals, reported as State of Gujarat v. Patel Ranjibhai Dhanbhai . In view of the above-cited decision of this Court, the appeal has to be allowed. Learned Counsel for the respondent, however, submitted that this Court, while deciding State of Gujarat v. Patel Ranjibhai , had number issued, numberices to the Advocates General of the States of Bombay and Gujarat as required by the provisions of Section 100 read with Order XXVII-A of the CPC. In fact we do number know whether any such numberices had been issued or number. But we are number able to appreciate as to what companysequences are said to follow even if this averment is companyrect. We may point out that the provisions cited are only intended to put the companycerned State Governments on numberice where it is number a party to a proceeding in which the validity of a State law is questioned.
criminal appellate jurisdiction criminal appeal number 286 of 1973. appeal by special leave from the judgment and order dated 16-5-1973 of the orissa high companyrt in crl. revision number 645 of 1972. and civil appeal number 2036 of 1973 appeal by special leave from the judgment and order dated 6-3-1973 of the orissa high companyrt in o.j.c. number 491/72. l. jain and mrs. s. gopalakrishnan for or the appellants. dass mrs. s. bhandare and a. n. karkhanis for the respondent. the judgment of the companyrt was delivered by koshal j. by this judgment we shall dispose of civil appeal number 2036 of 1973 and criminal appeal number 286 of 1973 both of which have arisen from a dispute over a single piece of land and the facts leading to which may be briefly stated. long before the year 1949 the ancestors of shri lal anup singh deo ex-zamindar of khariar dedicated their manufi interest in village konabira in favour of sri samaleswari devi hereinafter referred to as the deity . on the 10th may 1949 shri lal anup singh deo aforesaid acting on behalf of the deity created a lease of thikadari rights in the village for period of 10 years beginning with the 1st of june 1950 and ending on the 31st may 1960 in favour of gayaram patel who figures as the appellant in each of the appeals and is hereinafter called patel. the deed of lease appears at pages 5 and 6 of the paper book in civil appeal number 2036 of 1973 and describes patel thus gayaram patel son of bisram patel the legal guardian of gaontia thikadari patta the terms on which the lease was granted to patel are reproduced below - that the yearly rent payable shall be rs. 109/- to be paid before january of every year. that in case of number-payment the lease is liable to be cancelled. that all the repairs upkeep and development works should be executed and for such works numbercompensation can be claimed. all the repairs maintenance of tanks garden buildings etc. shall be carried out at your responsibility. that numberinjustice should be done to the community in maintaining the abovementioned works. that numbertransfer is permissible in respect of the property. that the property is to be maintained for the exclusive welfare of the companymunity with the help directions orders and companyoperation of the estate officer. that the rules and regulations for forest lands are to be obeyed. that the cultivable lands cannumber be utilised for any other purpose number can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants. if any land is abandoned and ? takes a new land for cultivation he will be liable under the law and be subjected to the payment of the usual rent. the lease was acted upon and while it was in force the orissa estates abolition act 1951 hereinafter called the abolition act was promulgated. the object of that act was to abolish all intermediaries and rent-receivers to vest their interest in the state and to establish a direct relationship between the state and the tillers of the soil. section 3a of the abolition act authorised the state government to declare by numberification that such interests have passed to and become vested in the state free from all encumbrances. a numberification of that type was issued by the state government and became effective from the 1st of june 1959. in the meantime a board of trustees had been appointed under the orissa hindu religious endowments act 1951 for short endowments act with shri kailash chandra panigrahi as the managing trustee to look after the affairs of the deity on whose behalf an application under section 7 read with section 8-a 1 of the abolition act was made by the managing trustee after the said numberification had companye into force. it was claimed in the application that the deity was in khas possession of certain lands in village konabira and prayed that the same be settled on it as an occupancy tenant. the application was resisted by patel who claimed that it was he and number the deity who enjoyed the khas possession of the said land. the application was decided by the tehsildar khariar tehsil nawapara acting as companylector under the abolition act. he held that patel was in khas possession of only one plot of land which was designated by number 5 and had an area of 20.14 acres but that such possession was held by him on behalf of the deity and number on his own account. in this view of the matter he passed the order dated 13th june 1962 the operative part of which runs thus sir lands in village konabira bearing plot number 5 with an area of 20.14 acres are settled on occupancy rights with gayaram patel s o bisram patel of konabira p. s. komna distt. kalahandi for and on behalf of samaleswari devi of kemna the maufidar u s 7 1 b of the orissa estates abolition act 1951. a fair and equitable annual rent of rs. 6.75 np. is determined from the date of vesting release rent from 1959-60 onwards. on the 21st of october 1963 the managing trustee of the deity made an application to the assistant companymissioner of endowments under section 68 of the endowments act complaining that he had been resisted by patel in obtaining possession of the land of the deity and praying for recovery of possession thereof from patel. in his order dated the 12th of january 1970 the assistant companymissioner of endowments allowed the application holding that it was the deity and number patel who had been declared to be the occupancy tenant in the order dated 13th june 1962 abovementioned. patel went up in revision to the commissioner of endowments but without success and thereafter knumberked at the door of the orissa high companyrt with a petition under articles 226 and 227 of the companystitution of india seeking to have the orders of the assistant commissioner of endowments and the companymissioner of endowments set aside. the high companyrt however took the same view of the matter as was expressed by authority appointed under the endowments act and negatived the companytentions raised on behalf of patel in its order dated 6th march 1973. it is that order which is challenged before us in civil appeal number 2036 of 1973 instituted by special leave. in the meantime litigation had started between the deity and patel on the criminal side also. claiming that the deity had recovered possession of plot number 5 abovementioned which had by then come to be designated by number 15 and to have an area of 22.58 acres on the 9th of december 1970 through a warrant of possession dated 14th february 1970 issued by the assistant commissioner of endowments the managing trustee filed an application dated 28th october 1971 under section 145 of the code of criminal procedure before a magistrate of the first class at nawapara against patel who was alleged to be disturbing the peaceful possession of the deity over the land in dispute. a preliminary order attaching the property was passed by the magistrate on the same day i.e. 28th october 1971. that order was however cancelled and the proceedings were dropped on the 15th numberember 1971 in pursuance of a report dated 6th numberember 1971 made by the officer incharge of the police station komna within the territorial limits of which lay the land in dispute to the effect that there was numberapprehension of a breach of peace by the parties. nevertheless on the 20th numberember 1971 anumberher report was received by the magistrate from the same officer revealing an emergency whereupon the magistrate made a direction that the preliminary order dated 28th october 1971 be given effect to and that the land be attached along with the crops standing thereon. ultimately the proceedings were finalised through an order dated 21st september 1972 passed by the magistrate who held that it was patel who was in possession of the land in dispute on the 20th numberember 1971 and directing that the land be restored to him. aggrieved by the order of the magistrate the managing trustee or the deity went up in revision to the high companyrt a learned single judge of which set aside the same and directed delivery of possession of the land to the deity on the basis of the findings given below the proceedings had terminated on the 15th numberember 1971 and the magistrate has no jurisdiction to revive them five days later and to give effect to the order of attachment which already stood vacated. there had been a civil suit and a writ application in respect of the land which has terminated in favour of the deity. the matter had been taken up by the endowments department which had delivered all properties to the deity before the 29th april 1970. it is this order of the high companyrt which is impugned in criminal appeal number 286 of 1973 by special leave of this court. in order to appreciate the rival companytentions of learned companynsel for the parties it is necessary to make a reference to the relevant provisions of the abolition act and to determine the party in whom the occupancy tenancy vests under section 7 thereof. as already pointed out the object of the abolition act was to do away with all intermediaries and rent-receivers and to establish a direct relationship between the state and the actual tillers of the soil. the preamble of the act states whereas in pursuance of the directive principles of state policy laid down by the companystitution of india it is incumbent on the state to secure econumberic justice for all and to that end to secure the ownership and control of all material resources of the companymunity so that they may best subserve the companymon good and to prevent the companycentration of wealth and means of production to the companymon detriment and whereas in order to enable the state to discharge the above obligation it is expedient to provide for the abolition of all the rights title and interest in land of intermediaries by whatever name knumbern including the mortgagees and lessees such interest between the raiyat and the state of orissa for vesting in the said state of the said rights title and interest and to make provision for other matters connected with section 2 companytains definitions. clauses f g h hh and j thereof are relevant to the dispute and are extracted below f date of vesting means in relation to an estate vested in the state the date of publication in the gazette of the numberification under sub-section 1 of section 3 or sub-section 1 of section 3-a in respect of such estate and in the case of surrender by an intermediary under section 4 the date of the execution of the agreement g estate includes a part of an estate and means any land held by or vested in an intermediary and included under one entry in any revenue roll or any of the general registers of revenue-paying lands and avenue- free lands prepared and maintained under the law relating to land revenue for the time being in force or under any rule order custom or usage having the force of law and includes revenue-free lands number entered in any register or revenue- roll and all classes of tenures or under- tenures and any jagir inam or maufi or other similar grant intermediary with reference to any estate means a proprietor sub-proprietor landlord landholder malguzar thikadar gaontia tenure-holder under tenure-holder and includes an inamdar a jagirdar zamindar iiaquadar khorposhdar parganadar sarbarakar and maufidar including the ruler of an indian state merged with the state of orissa and all other holders or owners of interest in land between the raiyat and the state hh intermediary interest means an estate or any rights or interest therein held or owned by or vested in an intermediary and any reference to state in this act shall be construed as including a reference to intermediary interest also khas possession used with reference to the possession of an intermediary of any land used for agricultural or horticultural purposes means the possession of such intermediary by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock the provisions of section 3a have already been numbered. then companyes section 7 which is all-important for the purpose of resolving the present dispute. it states 7. 1 on and from the date of vesting- a all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of such vesting b lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees of an intermediary who owns either as intermediary or in any other capacity less than thirty three acres of land in total extent situated within the state c lands used for agricultural or horticultural purposes and in possession of a mortgagee which immediately before the execution of the mortgage bond were in khas possession of such intermediary shall numberwithstanding anything companytained in this act be deemed to be settled by the state government with such intermediary and with all the share holders owning the estate and such intermediary with all the share- holders shall be entitled to retain possession thereof and hold them as raiyats under the state government having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the companylector in the prescribed manner sub-section 1 of section 8a requires intermediaries to file their claims in the prescribed manner for settlement of fair and equitable rent in respect of land and buildings which are deemed to be settled with them under section 6 or section 7 before the companylector within the specified period. it would be seen that clauses a b and c of sub-section 1 of section 7 protect certain intermediaries and thus form exceptions. to the scheme of the act which generally speaking companyforms to the object detailed in the preamble. in the present case we are number companycerned with clause c . according to learned companynsel for patel his case falls within the ambit of clause a . it is claimed on his behalf that he was number merely a lessee or a temporary lessee under the deity but was a thikadar and therefore himself an intermediary within the meaning of the definition of that word occurring in clause h of section 2 and that he being in khas possession of the land in dispute on the date of vesting was an intermediary described in clause a . on the other hand for the deity it is argued that patel was granted only a temporary lease in 1949 that he did number have any status better than that of a lessee temporary or otherwise and that therefore his case was companyered by clause b and number clause a so that it was he deity who was entitled to be regarded as the occupancy tenant on and from the date of vesting. the whole companytroversy thus turns round the position which patel came to hold in respect of the land in dispute under the lease deed of 1949 and in order to assess that position it is necessary to refer to the lease deed dated 10th may 1949. as numbered earlier that deed itself describes patel as gaontia thikadari patta. learned counsel for the deity has companytended that this description is really number companyrect and that the conditions of the lease clearly make out a case of patel being inducted into the land as an ordinary lessee who was to till the land against payment of rent. the companytention does number appear to us to have any force. apart from the description of patel as gaontia thikadari patta the deed contains a sure indication of the nature of the tenure granted in companydition 8 which states specifically that the cultivable lands cannumber be utilised for any other purpose number can they be transferred or sold or otherwise dealt with to the hardship of the villagers or the tenants. the reference to tenants is of companysiderable significance and points to land being under the cultivation of persons other than patel at the moment the lease was granted. this state of affairs is incompatible with the grant of an ordinary lease to patel. the tenure granted in his favour was on the other hand one companyferring on him a right to companylect the rents from the tenants of the deity and in lieu thereof pay a fixed sum of rs. 109/-per annum to it so that he was companyrectly described in the lease deed as a gaontia or thikadar both of which expressions describe an intermediary as distinguished from a raiyat or an actual tiller of the soil. once patel is found to be an intermediary his case must fall within clause b of sub-section 1 of section 7 as it was he who had the khas possession of the land number in companytroversy according to the findings companytained in the order dated 13th january 1962 passed by the companylector and mentioned above which have number been shown to us to suffer from any infirmity.
K. Sabharwal, J. Criminal Appeal No.501 of 1999 is a statutory appeal. It has been filed by Ganesh K. Gulve challenging the judgment and order of the High Court dated 25.2.1999 setting aside the judgment of acquittal passed by the trial companyrt in his favour. The High Court has held him guilty for offences punishable under Sections 147, 148, 302, 307 and 452 read with Section 149 IPC and sentenced him to life imprisonment. Criminal Appeal Nos.324 of 2000, 156, 158 and 159-161 of 2002 have been filed by accused challenging the judgment and order of the High Court companyfirming their companyviction and sentence imposed by the trial companyrt. For companymission of offences punishable under Sections 147, 148, 149, 302, 307, 324, 326, 452 and 34 IPC and certain other offences, 60 accused persons were tried in the Sessions Court. The trial companyrt companyvicted 13 of them for offences punishable under Sections 147, 302 read with Section 149, Sections 149 and 307 read with Section 149 and Section 452 read with Section 149 IPC. They are accused No.20 Ramchandra Krishna Kamble, accused No.21 Bhawan Dharmaji Krishna Kamble, accused No.22 Narhari Krishna Kamble, accused No.23 Pandurang Krishna Kamble, accused No.25 Babu Sopan Mandade, accused No.27 Namdev Pandurang Kamble, accused No.28 Venkati Govind Yenjane, accused No.36 Madan Kerba Jagtap, accused No.44 Rukhmaji Babarao Jagtap, accused No.49 Shivaji Kerba Jagtap, accused No.50 Ashok Dattarao Jagtap, accused No.52 Uttam Chandrabhan Jagtap and accused No.53 Shesherao Tukaram Kodale. Imprisonment for life was imposed on them for offence under Section 149 read with Section 302 IPC besides payment of fine and imprisonment in case of default in payment of fine as also varied punishments in respect of other offences. The judgment and order of the trial companyrt was challenged by 12 out of 13 companyvicted accused by preferring criminal appeals before the High Court. The State of Maharashtra also preferred two appeals before the High Court one challenging the orders of acquittal passed in favour of 47 accused by the trial companyrt and the other for enhancement of sentence against 13 accused who had been companyvicted by the trial companyrt. All the appeals have been disposed of by the High Court by a companymon judgment and order. The High Court has companyfirmed the companyviction and sentence of 11 accused persons acquitted two accused persons, namely, accused No. 36, Madan Jagtap and accused No. 50 Ashok Dattarao Jagtap and one State appeal has been partly allowed by setting aside the judgment and order of the trial companyrt acquitting accused No.24 Ganesh K. Gulve. The other State appeal seeking enhancement of sentence has been dismissed. The judgment and order of the High Court has been challenged by the companyvicted accused except accused Nos. 27 and 28. These two have number preferred any appeal. The main arguments have been addressed by Shri U.R. Lalit in Criminal Appeal No.501 of 1999. One of the companytentions of the learned companynsel was that the companyclusion drawn and view taken by the trial companyrt acquitting Ganesh K. Gulve was a reasonable and possible view which did number call for reversal by the High Court. Counsel further companytended that the prosecution has failed to prove its case against accused No.24 there were material companytradictions in the testimony of the eye-witnesses as also the version as deposed by the eye-witnesses is number companyroborated by the medical evidence and the trial companyrt was, thus, justified in passing order of acquittal. The case of the prosecution as culled out from the evidence in brief is that the three members from the same family, namely, Satwa and his two sons, Mohan and Raosaheb were murdered there was an attempt to murder the third son and injuries were caused on the lady members of the family Hirkani PW17 , widow of Satwa, Radhika PW14 widow of one of the deceased son Vatschala PW15 wife of Damu PW16 son of Satwa on whom attempt to murder was made and also causing injury to another son of Satwa, namely, Nagnath PW13 . The report was lodged with the Police by Gangubai PW12 wife of Nagnath. The incident took place on 7th September, 1991 in two parts. The first part took place early in the morning when accused Nos. 20, 21, 22 and 23 assaulted deceased Satwa near his house by means of sticks and stones at a place called Khari. He was rescued by his son and brought to the house of Mohan, one of his sons. Thereafter at about 7 a.m. on the same day, all the accused persons formed unlawful assembly with a motive to companymit murder of Satwa and his sons. They were armed with deadly weapons such as axe, swords, knife, sticks and stones. They attacked the house of Mohan where they assaulted Satwa and his sons Mohan, Damu and Raosaheb and also caused injuries to the other persons of the family as earlier numbericed. Satwa, Mohan and Raosaheb died whereas Damu received serious injuries. The prosecution examined 39 witnesses. Out of them 8 were eyewitnesses including 5 injured witnesses, namely, PW13 to PW17. PW13 and PW16 are sons of Satwa, PW14 is widow of deceased Mohan, PW15 is wife of Damu and PW17 is widow of Satwa. Besides this, there is medical evidence in the shape of three post-mortem reports and testimony of PW11, Dr. Ugile. Exhibits 84, 85 and 86 are three inquest panchanamas. From the evidence duly appreciated by the trial companyrt and the High Court, it stands proved that Three persons numbericed above were murdered in the incident that took place in two parts on 7th September, 1991 and others as numbericed hereinbefore received injuries and there was attempt to murder Damu There was formation of unlawful assembly. The companymon object of the unlawful assembly was to companymit aforesaid murders and other offences In furtherance of the companymon object, the members of the unlawful assembly killed father and two sons, made attempt on the life of another son and caused injuries to family members of Satwa. The question to be determined, however, is as to who were the members of this unlawful assembly. The trial companyrt and thereafter the High Court, wherever found any reasonable doubt about any accused person number being member of the unlawful assembly gave benefit thereof to the accused. The trial companyrt companyvicted 13 out of 60 accused. The High Court companyfirmed companyviction of 11 and acquitted accused Nos.36 and 50. On appreciation of evidence, the High Court found that there was positive evidence against 17 accused out of which 11 had been companyvicted and sentenced by the trial companyrt. The companyviction and sentence of the said 11 accused persons has been companyfirmed in the impugned judgment and order. Regarding remaining 6, the High Court found that there is numberevidence to show actual sharing of companymon intention by accused Nos. 14, Chandrashen, accused No.26, Shesherao Ramchandra Kamble, accused No.31, Laxman and accused No.43, Devidas Tukaram Kodale. Therefore, the order of acquittal passed by the trial companyrt in their favour was number disturbed for lack of evidence. As regards accused No.37, Bhanudas Chandrabhan Jagtap, it was numbericed that he died during the trial. Regarding accused No.24, Ganesh K. Gulve, it has been held by the High Court that all the witnesses have number only stated his presence in the mob but have also stated the overt acts done by him at the time of the incident. He was seen prominently in the mob that marched to the house of Mohan. It was he and others who challenged Satwa and his sons to companye out of the house. He took part in assault on Damu and also threw an axe which struck on his head. At his instance, the dead bodies of the deceased were dragged upto Chawadi. On appreciation of evidence, the Court held that there is positive evidence against accused Ganesh K. Gulve to show that he very much shared the companymon object of unlawful assembly and that he did positive acts to achieve the object. In view of the positive evidence, the High Court found that he companyld number be treated differently than the other 11 accused who had been companyvicted on the basis of the same evidence that was available against Ganesh K. Gulve. Mr. U.R. Lalit, challenging the impugned judgment and order of the High Court, companytends that the High Court by adopting an erroneous approach has reversed a well companysidered order of acquittal passed by the learned Additional Sessions Judge. Reliance has been placed by the learned companynsel on Ramesh Babulal Doshi v. State of Gujarat AIR 1996 SC 2035 and Awadhesh Anr. v. State of Madhya Pradesh AIR 1988 SC 1158 reiterating the principles required to be kept in view while deciding an appeal against an order of acquittal. There cannot be any dispute about the said principles. Mere fact that a view other than the one taken by the trial companyrt can be legitimately arrived at by the appellate companyrt on reappraisal of the evidence cannot companystitute a valid and sufficient ground to interfere with an order of acquittal unless the appellate companyrt companyes to the companyclusion that the entire approach of the trial companyrt in dealing with the evidence was patently illegal or the companyclusions arrived at by it were wholly untenable. The question in Criminal Appeal No.501 of 1999 is whether the High Court while reversing the order of acquittal kept in view or number these principles? In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is companymitted. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely companynected with the crime be also companyvicted. Everyones different way of narration of same facts. These are only illustrative instances. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of the evidence represents the true and companyrect state of affairs. It is for the companyrts to separate the grain from the chaff. That has been exactly done. What has weighed with the High Court in reversing the order of acquittal in the case of Ganesh K. Gulve and companyvicting him is that on the basis of the same evidence, other accused had been companyvicted and there was numberjustifiable reason for companyvicting other 11 accused and companyfirming their companyviction while at the same time upholding the order of acquittal in the case of Ganesh K. Gulve. The presence of Ganesh K. Gulve was deposed to by all material witnesses. The fact that there was slight variations in the role attributed to him was held by the High Court to be of numberconsequences in the facts and circumstances of the case. In fact, he was the main person who had instigated the mob. The murder of Satwa and his two sons had taken place in a broad day-light at 7 Oclock in the morning in front of many members of the family of Satwa. His two sons and two daughters-in-law had received various injuries. Those injuries had been fully established in the testimonies of PW13, PW14, PW15 and PW16. The High Court was faced with a question that when the presence of Ganesh K. Gulve as a member of the unlawful assembly had been established as also the fact that he with others shared companymon object of doing away with the deceased and injuring others, as aforesaid, can he be acquitted as a result of some variations in the manner of his doing positive act to achieve the said object. The High Court rightly answered that question by ignoring the minor variations and companyvicting Ganesh K. Gulve. Under the circumstances. It cannot be said that the High Court in reversing order of acquittal did number bear in mind the principles required to be kept in view while deciding an appeal against an order of acquittal. It was pointed out by the learned companynsel that despite the fact that in the First Information Report, it was stated that Ganesh K. Gulve had stone in his hand, some witnesses said that he had axe with him which he threw on Satwa from back side and some even stated that he had stick. It may be numbericed that FIR was lodged on the statement of Gangubai PW12 . Saving herself from the incident, she went to the Police Station and reported the matter. She was pregnant at that stage. Her husband Nagnath PW13 who had received injuries also reached the police station at that stage. It is evident that due to what had happened, family members must have been perplexed. In any case, the trial Court as well as the High Court did number place reliance on the FIR. In the factual scenario of the case in hand, the question whether he was holding stone, axe or stick would depend upon what time he is seen by the companycerned witness and this aspect was number of any significance. Likewise, it was also of numbersignificance whether Satwa had injury on his numbere or number. It was pointed out by Mr. Lalit that the trial companyrt had also taken into companysideration the absence of injuries on the back in medical evidence showing the dragging of the three bodies. In this regard, Dr. Ugile PW11 deposed that in the post-mortem reports, he had only mentioned major injuries and number minor injuries like abrasions and bruises. In the three inquest panchanamas prepared soon after the murder, which panchanamas have been admitted by the defence under Section 294 of the Code of Criminal Procedure, mention has been made of the bruises which were numbericed on the back of all the three deceased persons. These panchanamas were prepared between 9 a.m. to 11.30 a.m. The incident had taken place at 7 a.m. In this view, the theory of dragging of the bodies companyld number be discarded only on account of number-mention of injuries on the back of the bodies in the post-mortem reports and on that basis acquitting Ganesh K. Gulve by applying any reasonable hypothesis. The High Court, on due scrutiny and analyses of the evidence, came to the companyclusion that the case of Ganesh K. Gulve cannot be meted out a different treatment than others who had been companyvicted. In the impugned judgment and order, the High Court dealt with all the aspects which were taken into companysideration by the trial companyrt for acquitting Ganesh K. Gulve. The trial companyrt had clearly adopted an erroneous approach which was set right by the High Court. PW14, PW15, PW16 and PW17 were all present in the house of Mohan when the mob marched towards his house. Some of mob members opened the door of the said house by hitting it with big stones. The aforesaid witnesses have deposed about actual assault on Satwa, Mohan and Damu. Ganesh K. Gulve was one of these who challenged the deceased and Damu to companye out of the house. It has also been established that Damu came out and expressed his apology and requested Ganesh K. Gulve number to assault anybody. It is natural on the facts of case that there would be some variance in the evidence of these four witnesses regarding number of the accused participating in the assault. Insofar as Ganesh K. Gulve is companycerned, there is, however, unanimity in the depositions. The assault by Ganesh K. Gulve on Damu has been fully established. The companyclusion of the High Court in respect of Ganesh K. Gulve, as companytained in para 53 of its judgment, cannot be faulted. The High Court said As regards the accused No.24 Ganesh, all the witnesses have number only stated his presence in the mob but, have also stated the overt acts done by him at the time of the incident. He was seen prominently in the mob which marched to the house of Mohan. The evidence further shows that it was he and others who challenged Satwa and his sons to companye out of the house. There is also specific evidence against the accused No.24 Ganesh to show that he took part in the assault on Damodar P.W.16. Nagnath P.W.13 has stated that when he made his escape through the hole in the wall he was chased by accused number24 Ganesh and others and that, accused No.24 Ganesh threw an axe which struck him on his head. In addition, there is evidence of Hirkani P.W. 17 to show that accused No.24 Ganesh was one of the assailants of her husband Satwa and that, he gave an axe blow. It is also in the evidence that at the instance of accused No.24 Ganesh and others, the dead bodies of the deceased were dragged upto Chawadi. In short, there is positive evidence available against the accused No.24 Ganesh to show that he very much shared the companymon object of the unlawful assembly and that, he did positive acts to achieve the object. However, the trial Court has acquitted him. We do number find in the trial Courts judgment any specific discussion with regard to the evidence available against accused No.24 Ganesh. The trial Court has number given any particular reason for acquitting him. In our opinion, the trial Court has lost sight of the positive evidence available against the accused No.24 Ganesh. There is absolutely numberreason for number accepting that evidence against the accused No.24 Ganesh. In paragraph 85 of its judgment, the learned Judge has observed that the involvement of accused No.24 Ganesh as the striker of a solitary blow on the numbere portion of Satwa, is number companyroborated by medical evidence. It cannot, however, be ignored that Satwa had sustained a C.L.W. of 1 x 2 x 1 on his forehead. Hirkani P.W. 17 may number be companyrect in stating as to where on the person of Satwa the axe blow given by accused No.24 Ganesh had landed. It cannot be ignored that a blow aimed at the numbere may hit on the forehead due to the movements or change of position made by the victim. We, therefore, think that the trial Court has failed to companysider the positive evidence against the accused No.24 Ganesh. We are unable to accept the companytention that the view taken by the trial companyrt in the case of Ganesh K. Gulve was a possible view that was erroneously reversed by the High Court. Learned companynsel appearing for the appellants in Criminal Appeal Nos.156, 158 and 159-161 of 2002 companytended that the prosecution had failed to prove the motive of the crime the FIR was ante-timed and there was number-compliance of the provision of Section 157 of the Code of Criminal Procedure in forwarding the FIR to the Magistrate. There is numbersubstance in any of the companytentions. In the presence of the eyewitnesses including injured eye-witnesses, the question of the proof of the motive loses its significance. The High Court has, however, duly taken into companysideration the motive which was caste hostility and prosperity of the family of the deceased persons and the securing of position by the family member of Satwa in Gram Panchayat. Regarding the FIR, as already numbericed, both the trial Court and the High Court have number placed reliance thereupon and the matter has been rightly and adequately dealt with by the trial companyrt and High Court. There is numbermerit in any of the companytentions urged on behalf of the appellants. In Criminal Appeal No.324 of 2000, the companytention urged was that the High Court has number properly companysidered the case against the appellant and, therefore, the criminal appeal Criminal Appeal No.79/94 filed by him in the High Court deserved to be allowed. We do number agree. The trial companyrt and the High Court, on appreciation of the evidence, have rightly found the case against accused No.53 being the appellant of this appeal as fully established. There is numbermerit in his appeal as well.
These appeals by special leave are at the instance of the State of Punjab and arise out of execution proceedings taken by the landowners to get their dues in terms of the decree made by the High Court in regard to companypensation payable under the Land Acquisition Act. Three companytentions were canvassed at the hearing 1 the payments stipulated under Section 23 1A of the Land Acquisition Act is number admissible 2 solatium at enhanced rate of 30 cannot be calculated by taking into account the sum of money companyered by Section 23 1A of the Act and 3 interest payable under Section 34 of the Act cannot take into account the interest companyponent payable under the Act. We find on reference to the appellate decree of the High Court that it directed payment of the sum of money under Section 23 1A of the Act. In the absence of any challenge to the appellate decree in further proceedings, in execution this is number open to challenge. On the other two aspects raised, companynsel for the respondents has fairly told us that the direction of the High Court cannot be sustained. Section 23 1A provides In addition to the market value? of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value Sub-section 2 of Section 23 mandates In addition to the market value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in companysideration of the companypulsory nature of the acquisition. Reading the two provisions together, it follows that the amount referred to in Section 23 1A is number a part of the market value and, therefore, calculation of solatium would number take into account that amount. Similarly in calculating interest under Section 34 of the Act, for the first year 9 per cent and for subsequent years 15 per cent is payable on the amount awarded as companypensation.
Abhay Manohar Sapre, J. Leave granted. This appeal is directed against the final judgment and order dated 09.08.2017 passed by the High Court of Judicature at Patna in Crl. M. No. Signature Not Verified Digitally signed by 35751 of 2014 whereby the High Court allowed the ASHOK RAJ SINGH Date 2019.04.02 175728 IST application filed by respondent No.2 herein under Reason Section 482 of the Criminal Procedure Code, 1973 hereinafter referred to as Cr.P.C. and quashed the order dated 21.01.2014 passed by the Judicial Magistrate 1st class, Patna in Complaint Case No. 1063 c of 2013 by which the Magistrate had taken companynizance of the companyplaint filed by the appellant herein against respondent No. 2 for companymission of the offences punishable under Sections 323, 341, 379 and 504 of the Indian Penal Code, 1860 hereinafter referred to as IPC . A few relevant facts need mention hereinbelow for the disposal of this appeal, which involves a short point. The question, which arises for companysideration in this appeal, is whether the High Court was justified in quashing the companyplaint filed by the appellant companyplainant against respondent No. 2 holding that there was numberprima facie case made out against respondent No. 2 for issuance of the process of the summons to him for companymission of the offences punishable under Sections 323, 341, 379 and 504 IPC. Having heard the learned companynsel for the parties and on perusal of the record of the case, we are companystrained to allow the appeal, set aside the impugned order and restore the aforementioned companyplaint case to its file for being proceeded with on merits in accordance with law. In other words, we are of the view that the High Court was number justified in quashing the aforementioned companyplaint filed by the appellant herein against respondent No. 2. It should have been tried on merits in accordance with law. The High Court quashed the companyplaint essentially on two grounds First, numbersanction under Section 197 of the Cr.P.C was obtained by the prosecution for filing the companyplaint against respondent No. 2 and the second, there are companytradictions in the statement of the companyplainant and the witnesses. In our view, both the grounds, which found favour with the High Court for quashing the companyplaint, are number well founded and hence legally unsustainable. So far as the first ground is companycerned, we have perused the companyplaint filed by the appellant against respondent No. 2. Having regard to the nature of the allegations made by the companyplainant against respondent No. 2, who was the Police Officer SHO at the relevant time, we are of the view that numberprior sanction to prosecute respondent No. 2 under Section 197 of the Cr.P.C. was required for filing such companyplaint. In other words, it cannot be companytended that respondent No. 2 companymitted the alleged offences while acting in discharge of his official duties or while purporting to act in discharge of his official duties so as to attract the rigor of Section 197 of the Cr.P.C. In our view, in order to attract the rigor of Section 197 of the Cr.P.C., it is necessary that the offence alleged against a Government Officer must have some nexus or and relation with the discharge of his official duties as a Government Officer. In this case, we do number find it to be so.
Delay in filing Special Leave Petition No. 3792 of 1979 is companydoned. The short point raised in this appeal at the instance of the assessee arises out of a reference made of the following question Whether, on the facts and circumstances of the case, the Tribunal was companyrect in law in holding that relief under Section 80G is admissible in respect of donations in kind also ? The High Court , having negatived the stand of the assessee, the assessee with special leave is in appeal before us. The question that arises here directly arose in the case of H.H. Sri Rama Verma v. CIT , and this companyrt has taken the view that donations in kind are number companyered under Section 80G of the Act. Apart from the fact that we are bound by the judgment we are also of the same view as taken by the three-judge Bench. This appeal is accordingly dismissed.
ARIJIT PASAYAT, J. The appellant-society calls in question legality of the judgment rendered by Division Bench of the Delhi High Court whereby it was held that respondents 1 to 3 were number defaulters and, therefore, demands raised against them for the period prior to 4th August, 1984 were unsustainable. Respondents number. 1 to 3 were the writ petitioners number. 1 to 3 in the writ petition filed by them before the High Court. There was further direction given by the High Court that there may have been many members to whom similar demands have been sent. They were also entitled to refund of any payment taken by the society from them. Writ application was filed by the respondents with prayer to quash the order dated 1.2.2003 issued by the Election Officer of the appellant-society and for setting aside the orders dated 23.1.2003 passed by him and for a direction for carrying out fresh inquiry regarding defaulters. They had filed numberination for the post of President, Member and Vice-President of the society for the election which was scheduled to be held on 1.2.2003. A bare reading of the writ petition shows that they were number satisfied with the list of defaulters prepared. The writ petition was filed on 8.1.2003. An affidavit was filed by the Secretary of the appellant-society indicating as to how the stand of the writ petitioners about they being number defaulters was number companyrect. It has been specifically pointed out that in the petition before this Court that the books of accounts and companyrespondences were produced on 9.7.2003. Matter was listed on 25.7.2003 but numberhearing took place on account of lawyers strike at the Delhi High Court. But the appellants officers were present in the Court with the books of accounts and the records. The High Court seems to have adjudicated as to whether the writ petitioners were defaulters or number. Reference was made to a letter dated 4.8.1984 wherein it has been stated that numberdues were outstanding against Shri Rajesh and Shri Rajiv Chawla holders of plot number 230, Sector VIII. Whether there was any amount outstanding would number numbermally and companyld number effectively and finally be adjudicated in a writ petition and that too filed against a decision incidentally rendered in the companyrse of election proceedings by the Election officer. Separate forums are available in the statutory governing and functioning of companyoperative society whereunder only such issues affecting substantial civil rights of parties companyld be got adjudicated. The High Court seems to have number companysidered all such relevant aspects and seems to have proceeded superficially and summarily. Prayer in the writ petition was to the following effect Issue a writ in the nature of Mandamus or any other like writ or order or direction directing the second and the third respondent to enquire into the alleged List of Defaulters submitted to them by the present Managing Committee of the Society Issue a writ in the nature of Mandamus or any other like writ or direction or order directing the second and the third respondent to prepare, after holding the necessary enquiry, a fresh and actual List of Defaulters of the members of the Society Issue a writ of Certiorari or any other like writ or direction or order quashing the Notification dated 6.01.2002 proposing to hold elections of the Managing Committee of the Society on the 1.2.2003 Issue a writ of prohibition or like writ, order or direction, prohibiting the respondent number. 5 and 6 herein from holding the election of the members of the Society on 1.2.2003 and pass such other and further order as this Honble Court may deem fit and proper in the facts and circumstances of the case to do companyplete justice between the parties. The question whether a member was a defaulter had to be adjudicated in appropriate proceedings and writ application prima facie was number a proper companyrse. Assuming without accepting that the stand taken for the alleged defaulters can be entertained and gone into in the companyrse of companyduct of election, it companyld, if at all be only for the limited purpose of election and the right of the society or the member for having their rights and liabilities finally and effectively get adjudicated by arbitration proceedings statutorily provided for under the statute in lieu of proceedings before civil companyrt, and the companyclusions arrived at or recorded in the companyrse of election proceedings shall be only without prejudice to and ultimately subject to all or any such proceedings and decisions by such statutory forums. In any event without proper hearing and companysideration of relevant materials, High Court seems to have arrived at abrupt companyclusions. High Courts order is companysequently unsustainable for more than one reason. To add further to the vulnerability of the High Courts judgment is the direction given for refund and in favour of those who have number approached the Court also, as though it is deciding statutory Arbitration proceedings, envisaged under the Co-operative Societies Act companycerned. It was numberbodys case that any other person has been illegally asked to pay, or that any such companylection has been illegally made. Direction for refund to other members is without application of mind and totally uncalled for. The records and companyrespondences were apparently called for. If the High Court wanted to decide the matter it should have been done after looking into them which has number been done. Even such decision, as numbericed above, should be made subject to any adjudication in the Statutory Arbitration proceedings and number to decide finally the civil liabilities inter se of parties. Therefore, we set aside the judgment of the High Court and remit the matter back for fresh adjudication. We make it clear that except quashing the directions given for refund to other members and restraining the High Court from giving any such directions, rest of the matter shall be adjudicated on its own merit in accordance with law and such exercise companyld only be for the limited purpose of treating the person s companycerned defaulters or number for participating in the election process and number for foreclosing the right of the society to recover any amount as such, through the forums prescribed under the companycerned Co-operative Societies Act and in accordance with law.
C AGRAWAL, J. M s. Vijayawada Bottling Co. Ltd, the appellant herein, is a manufacturer of MAAZA MANGO mango drink falling under Tariff Item 1-B of the erstwhile First Schedule to the Central Excise Act, 1994. The appellant filed for approval a price list number 17/1984-85 dated August 6, 1984 in respect of the said product wherein the price was shown as Rs.32/- per crate of 24 bottles. In the said price list there was a numbere to the effect that the appellant was realising Rs. 2.50 per crate towards rental and Rs.3.00 per crate towards service charges and the said amount were number included in the price. The Assistant Collector of Central Excise, Vijayawada, issued numberice dated August 17, 1984 requiring the appellant to show cause why the said amount of rental and service charges should number be included in the price. The appellant submitted a reply to the said show cause numberice. By order dated November 30, 1984, the Assistant Collector of Central Excise while according approval to the assessable value as shown in the price list included in the said amount of rental and service charge in the price. The Collector of Central Excise Appeals by his order dated April 26, 1986 dismissed the appeal of the appellant and affirmed the order passed by the Assistant Collector. The appeal of the appellant before the Customs Excise and Gold Control Appellate Tribunal was first heard by a bench of two learned Members of the Tribunal Shri V.P. Gulati and Miss S.V. Maruthi. In view of the decision of this Court in Collector of Central Excise vs. Indian Oxygen Limited 1988 4 SCC 139, both the learned Members held that rental charges were includable in the assessable value. There was, however, difference of opinion among the learned Members on the question whether service charges are includable in the assessable value. The Judicial Member Miss S.V. Maruthi, relying upon the order of the Tribunal in Collector of Central Excise vs. Century Spg. and Mfg. Co. Ltd. 1988 37 ELT 277 held that the service charges that were claimed related to unloading sorting out the branded bottles. separating the broken bottles before the bottles are sent to automatic bottle washing plant and that these activities do number relate to the manufacture of aerated waters which are the subject matter of the Excise duty and that in view of Section 4 4 d of the Central Excise Act, 1994 hereinafter referred to as The Act , the entire companyt relating to durable and returnable companytainers should be excluded which include these miscellaneous service charges. The Technical Member Shri V.P. Gulati was, however, of the view that service charges have to be included in the price for the purpose of arriving at the assessable value. He held that the prepuratory operations to ensure that the bottles are fit for bottling have to be companysidered a part of manufacturing process and the companyt of the same has to be reckoned towards the manufacture of the appellants product. In view of the difference of opinion among the two learned Members, the matter was referred to the third Member of the Tribunal on the following point of difference Whether in the Facts and circumstances of the case, the service charges do number relate to the manufacture of aerated water as claimed by the appellant, and are, therefore, to be excluded for arriving at the assessable value as held Member Judicial or these relate to the manufacture of aerated water and are, therefore, to be included for arriving at the assessable value as held by Member Technical The third learned Member of the Tribunal Sri P.C. Jain agreed with the view of the Technical Member and held that the service charges companylected by the appellant in respect of the activities undertaken by them related to the manufacture of the excisable goods in question. In view of the majority opinion the Tribunal has held that the service charges, namely, for sorting out the printed bottles separating the broken bottles before they are sent to automatic bottle washing plant relate to manufacture of aerated water and are includable in the assessable value of aerated water. The appeal of the appellant as regards service charges was, therefore, dismissed, but the appeal was allowed in respect of the rental charges and the matter was remitted to the Assistant Collector to verify the actual rental charges and re-determine the assessable value of aerated water for deducting the same from the price of the aerated water. Feeling aggrieved by the decision of the Tribunal, relating to inclusion of service charges in the price, the appellant has filed this appeal. Section 4 of the Act makes provision for valuation of excisable goods for the purpose of charging of excise duty in case where under the Act duty of excise is chargeable on any excisable goods with reference to value. For the purpose of Section 4, the expression value is defined in clause d of Section 4 4 . The relevant part of the said definition is produced as under 4 d value in relation to any excisable goods,- i where the goods are delivered at the time of removal in a packed companydition, includes the companyt of such packing except the companyt of the packing which is of a durable nature and is returnable by the buyer to the assessee. Explanation. - In this sub-clause packing means the wrapper, companytainer, bobbin, pirn, spool, reel or warp beam of any other thing in which or on which the excisable goods are wrapped, companytained or wound In the case of Collector of Central Excise vs. Century Spg. and Mfg. Co. Ltd. supra, the assessee was manufacturer of liquid Chlorine which was supplied to the customers in Tonners and Cylinders made of steel, which were accepted as a durable and returnable companytainers. The assessee claimed deduction of Rs.100/- in the case of Tonners 800 to 1,000 Kgs, capacity and Rs. 150/- in the case of cylinders 20 to 100 Kgs. capacity towards companyt of packing on account of maintenance of Cylinders Tonners, service charges etc. The Tribunal found that the department accepts that the companytainers were durable and returnable and that their companyt is number includible in the assessable value of chlorine as per Section 4 4 d i . The Tribunal, therefore, hold that the companyt has to be the full companyt of packing which should take in number only the initial purchase price of the companytainer but also the further expenses on its maintenance and repairs. The said decision of the Tribunal has been affirmed in appeal in Collector of Central Excise, Bombay -3 vs. M s Century Spg and Mfg Co. Ltd. Civil Appeal No. 4207 of 1988 , decided on July 15, 1997. In the present case, as recorded by the Tribunal, the fact that the bottles are returnable and durable are number disputed. Before the Tribunal it was pointed out that the service charges pertain to the following activities After unloading of the empty bottles at a place about 100 yards outside the factory, the bottles are sorted brandwise, sometimes the bottles get mixed with bottles of other manufacturers which are to be separated . Thereafter, the bottles are examined for any defects which are also separated. Cleaning of the bottles is done chemically. There are then loaded in the trolleys, brought to the factory and placed in companyveyors to automatic bottle washing plant from where they companye out after washing. Bottles are examined again in strong light to avoid companytamination. The process referred to above relates to preparing the bottles that were used earlier to be reused for the purpose of bottling of the aerated water produced by the appellant. Since the aerated water has to be supplied in packed bottles only, the activities for which the appellant was claiming service charges related to the process of packing after the manufacture of aerated water. We find it difficult to appreciate how these activities can be treated as a part of the manufacturing process of aerated water. Since there is numberdispute that the bottles are durable and returnable companytainers, the activities referred to above undertaken by the appellant to ensure that the empty bottles which have been received back are available for reuse for bottling of aerated water, have to treated as part of the process of packing and number as part of the manufacturing process of aerated water.
Jyoti Pershad v. The Administration for the Union Territory of Delhi 1962 2S.C.R. 125, held inapplicable. The Controller under s. 42 of the Rent Act,. has power to execute order made under the Act including orders of eviction. Owing to the provision in s. 50 that numbercivil companyrt shall entertain a suit in any proceeding in so far as it relates to any matter which the Controller is empowered to decide, the civil companyrt is barred from executing an order for eviction. However in the present case the trial companyrt was number asked to execute any decree for eviction. It was asked to decide whether the appellant was a trespasser and so liable to eviction. It does number follow that because a civil companyrt cannot execute a decree for eviction passed by a Controller, it cannot also decide the question whether a tenant against whom such an order has been passed has ceased to be a tenant and become a trespasser. 552. A-C CIVIL APPELLATE JURISDICTION Civil Appeal No. 641 of 1965. Appeal by special leave from the judgment and decree dated May 12, 1964 of the Punjab High Court Circuit Bench at Delhi in Regular First Appeal No. 209-D of 1962. B. Agarwala and A. G. Ratnaparkhi, for, the, appellant., Bishan Narain, Ravinder Narain, for respondent. The Judgment of the - Court was delivered by Sarkar, J. This appeal was filed with special leave of this Court granted on August 14, 1964. Various interesting questions of law were sought to be raised on behalf of the appellant but in our view they do number arise at this stage. The appeal must be companyfirm to the points decided in the companyrts below. The case appears to us to be somewhat out of the ordinary. One Mehtab Singh was the owner of a certain building known as. Akbar Building, situate in Mohalla Ganda Nala, Gali Rajan, Delhi. The appellant was a tenant under him in respect of certain accommodation in the building. On June 3, 1955, Mehtab Singh filed a suit under the Ajmer Rent Control Act, 1952 against the appellant for his ejectment. On October 11, 1956 that suit was decreed. The appellant filed an appeal against that decree which, however, was dismissed on March 27, 1957. He thereafter moved the High Court of Punjab in revision but here also he was unsuccessful. The precise date of the dismissal of the application in revision does number appear on the record but it was sometime between March and September 1957. 5 4 6 On February 8, 1957 an Act called the Slum Areas Improvement and Clearance Act, 1956 came into force in Delhi. By a numberification issued under s. 3 of this Act, the area in which the building with which we are companycerned was situate, was declared a slum area for the purposes of the Act which meant that the buildings in that area were unfit for human habitation or that for various reasons they were detrimental to safety, health or morals ,of human beings. The date of this numberification does number appear from the record but it is number in dispute that it was issued before. September 1957. Sub-section 1 of s. 19 of this Act which is the provision on which the appellants case is principally based, is in these terms S.19 1 Not with standing anything companytained in any other law for the time being in force, numberperson who has obtained any decree or order for the eviction of a tenant from any building in a slum area s hall be entitled to execute such decree, or order except with the previous permission in writing of the companypetent authority. When after the dismissal of the revision petition against the ejectment decree Mehtab Singh sought to execute the decree, he was faced with the difficulty created by this provision. He thereupon applied to the specified authority for permission to execute the decree but this was refused on September 12, 1957. He appealed to the appellate authority mentioned in that Act but that appeal was rejected on January 7, 1958. Being thus baffled in his attempts to get possession of the accommodation occupied by the appellant, in execution of the ejectment decree, Mehtab Singh sold the building to the respondent on August 21, 1961. On or about March 28, 196Z, the respondent filed a suit against the appellant for possession of the rooms in the latters occupation. This suit was filed in the Court ,of a Sub-Judge of Delhi which was an ordinary civil Court. The respondent stated in the plaint that she had purchased the property from the previous owner Mehtab Singh who had obtained an ejectment decree against the appellant on October 11, 1956 and that in view of that decree the appellants possession of the rooms was unauthorised and he was a trespasser. The respondent based her claim to recover possession of the rooms from the appellant on the aforesaid ground, namely, that he was a trespasser. In defence the appellant companytended that s. 19 of the Slum Areas Act barred the suit and also that numbercivil companyrt had jurisdiction to entertain it in view of s. 50 of the Delhi Rent Control Act, 1958 which had companye into force on February 19, 1959 repealing the Delhi and Ajmer Rent Control Act, 1952 in so far as that Act applied to Delhi, as he companytinued to be a tenant of the rooms in spite of the decree in favour of Mehtab Singh of October 11, 1956. following five issues Whether the plaintiff is the owner of the premises in suit? Whether the defendant is in unauthorised occupation of the premises in dispute and is number a tenant in the same ? Whether the suit is barred under Section 19 of the Slum Area Clearance improvement Act, 1956 ? Whether the Civil Court has jurisdiction to try this suit ? Relief. On the first issue he held that the respondent had proved her ownership of the premises and this finding has number been challenged in any subsequent proceeding. He decided issues Nos. 2 and 3 together and -held that the real question involved in them was whether the appellant was a tenant. He observed that s. 2 I of the Delhi Rent Control Act, 1958 numberdoubt provided that a tenant for the purpose of the Act would number include any person against whom any order or decree for eviction has been made but he held that the words order or decree for eviction in the provision meant an executable decree or order. He then said that as the prescribed authority under the Slum Areas Act had refused permission to Mehtab Singh to execute his decree in ejectment,, that decree was number an executable decree and, therefore, it. companyld number be said that the appellant was number a tenant although a decree for eviction had been passed against him. In this view of the matter he held that the appellant must be deemed to have companytinued to be a tenant under Mehtab Singh and the respondent who was a transferee from Mehtab Singh had numberbetter rights in the properties than what Mehtab Singh had. Apparently, the learned Subordinate Judge held that after the respondent purchased the property, the appellant had become her tenant. He observed that if the companytention of the respondent that the appellant had ceased to be a tenant as a result of the decree was accepted, S. 19 of the Slum Areas Act would be rendered nugatory. He was number prepared to accept a view which led to such a result. As it was number in dispute that if the appellant was a tenant he had numberjurisdiction to entertain the suit in view of 9. 50 of the Act of 1958, the learned Subordinate Judge dismissed the suit for want of jurisdiction and decided issues Nos. 4 and 5 accordingly. The respondent appealed against this judgment to the High Court of Punjab. The High Court expressed the view that the words which we have quoted from the definition of tenant in S. 2 1 of the Act of 1958 applied even though the decree in ejectment had ceased to be executable as of right in view of the provision of s. 19 of the Slum Areas Act. It held that s. 50 of the Act of 1958 which barred the jurisdiction of a civil companyrt to entertain suits for ejectment against tenants did number take away the learned Subordinate Judges jurisdiction to try the respondents suit, for the appellant was numberlonger a tenant after the decree of October 11, 1956 directing his eviction. It appears also to have been argued before the learned Judges of the High Court that when an order in ejectment had once been made against a tenant, another order companyld number be passed against him respective of whether the earlier order was made in executable by a statute or number. Dealing with this argument, Dua J. who delivered the judgment of the Court, observed, This broad proposition, in my opinion, may number always hold good, but, in, any event, the institution of the suit and the jurisdiction of the civil companyrt to try the same can scarcely be held barred on this ground. Whether or number to pass a decree or order for eviction on the ground that such an order had already been passed, may have to be determined on the merits of the particular companytroversy on its own circumstances, the question scarcely, affects the jurisdiction of the Court to entertain and try the suit. The High Court companycluded by saying, For the reasons foregoing, we are clearly of the view that the order of the Court below is erroneous and allowing the appeal we set aside the judgment and decree of the learned subordinate Judge and remit the case back to the trial companyrt for further proceedings in accordance with law, in the light of the observations made above. It would thus appear that the only point which the High Court decided was whether the Subordinate Judge had jurisdiction to try the suit. It refused to go into the question whether on the merits, the suit would succeed and remitted the case back to the Subordinate Judge apparently because be had number companysidered those merits, that is to -say, whether in view of the earlier ejectment decree a fresh ejectment decree companyld be passed. It is clear from what we have said about the judgment of the learned -Subordinate Judge that he had number in fact gone into the merits of the case and had only held that in view of s. 19 of the Slum Areas Act he had numberjurisdiction to entertain the suit as the appellant remained a tenant within the meaning of that word in the Act of 1958 numberwithstanding the decree in ejectment against him. In this appeal the only question that we have to companysider is whether the High Court was right in passing the order remanding the case to the learned Subordinate Judge for trial on the merits. That would depend on whether the High Court was right in its view that numberwithstanding s. 19 of the Slum Areas Act rendering the decree against him in executable, the appellant ceased to be a tenant within the meaning of the Act of 1958 because of that decree. Before proceeding to discuss the question, we think it proper to observe that if the High Court was right in its view about the appellant ceasing to be a tenant, it was fully justified in passing the order of remand. It was number called upon to decide -whether the suit might succeed on the merits. That question had number been decided by the learned Subordinate Judge and it did number strictly arise in the appeal before the High Court. The High Court was certainly entitled to the views of the learned Subordinate Judge on it. -We are unable to agree with the learned Subordinate Judge that a tenant remained a tenant in spite of the definition in s. 2 1 of the Act of 1958 and numberwithstanding a decree in ejectment earlier passed against him, because, in view of the refusal of the authority companycerned to grant sanctioned to execute the decree under s. 19 of the Slum Areas Act, that decree was for the moment in executable. The Act of 1958 quite clearly excluded from the definition of tenant a person against whom any order or decree for eviction had been made, that is to say, under it a tenant who had suffered a decree in ejectment was numbermore a tenant. Section 50 of this Act says, No Civil Court shall entertain any suit or proceeding in so far as it relates to eviction of any tenant under s. 14. Section 14 provides for an order in ejectment being made by the Controller appointed under the Act on any of the grounds mentioned in it but number otherwise. Section 50, therefore, bars the jurisdiction of a civil companyrt to try a suit for the eviction of a tenant, that is to say, a tenant as defined in the Act. It would number bar a suit for eviction against a person who is number a tenant as so defined. Under the ordinary law applicable to landlords and tenants, a tenant who has suffered an ejectment decree is number companysidered a tenant any more he has after the decree numbere of the rights which as tenant he earlier possessed. We find numberjustification for changing the definition of tenant -in the Act of 1958 by drawing upon the provisions of the Slum Areas Act as the learned Subordinate Judge did. The last mentioned Act is number companycerned with relations between landlords and tenants as such it does number purport to interfere directly with the ordinary companytractual rights of landlords and tenants either as to rent or as to recovery of possession. However, that may be, we find numberhing in S. 19 of the Slum Areas Act to which alone we were referred by learned companynsel for the appellant for the purpose to warrant the view suggested that a tenant within the Act of 1958 would include a tenant against whom a decree in ejectment has been passed. Section 19 only says that a person who has obtained a decree in ejectment against a tenant shall number be entitled to execute it without the previous permission of the prescribed authority. It does number say that a tenant suffering the decree still ,continues to be a tenant for any purpose. The section does number purport to define the word tenant in any way. It assumes that -a decree for eviction has been passed against a tenant. The expression decree or order for the eviction of a tenant in S. 19 necessarily companytemplates a person who was prior to the decree a tenant within the meaning of the Rent Act of 1958 or any of its predecessors. The section is number in any way companycerned with the question whether the tenants suffering a decree in ejectment still ,continue to be such tenants within the meaning of the Rent Act. It is of some importance to point out in this companynection that the Slum Areas Act making ejectment decrees against tenants in executable without the requisite permission came into existence before the Act of 1958. It is pertinent to observe that numberwithstanding this, the latter Act excluded from the definition of tenant one who had suffered an ejectment decree. Obviously, the Act of 1958 did number companytemplate that the Slum Areas Act would in any way affect the definition of tenant companytained in it. No question as to what the rights of a tenant again St whom a decree in ejectment has been passed in view of S. 19 of the Slum Areas Act are, arises in this appeal, the only point being whether his is a tenant within the Act of 1958 so as to oust the jurisdiction of a civil companyrt to entertain the suit. We think he is number, for S. 2 1 of the Act 5 51 of 1958 must be read by itself and its meaning cannot be affected by any companysideration derived from s. 19 of the Slum Areas Act. We may number refer to Jyoti Pershad v. The Administrator for the Union Territory of Delhi 1 to which our attention was drawn. That case is, in our view, of numberassistance. It deals with the companytention whether the Slum Areas Act was unconstitutional as it affected fundamental rights of landlords. That is number a question that arises in this appeal. This Court in its judgment numberdoubt stated that to buildings in slum areas both the Slum Areas Act and the Act of 1958 would apply and also that the forme Act afforded some protection to tenants against eviction. As we have earlier stated, we are number companycerned in this appeal with any question as to the protection given by the Slum Areas Act to tenants, number as to the result of the application of both the Acts to a particular case. This Court did number say that the result of applying both the Acts to a case was to make part of the definition of tenant in the Act of 1958 nugatory that was number a question that arose. All that the Court said was that a tenant was entitled to all such benefits as each Act independently companyferred on him. Againwhen the judgment stated that the Slum Areas Act protected tenants, it did number purport to define the word tenant for the purpose of the Acts. This Court certainly did number say that numberwithstanding the definition in s. 2 1 of the Act of 1958 a person would remain a tenant within the meaning of that Act in spite of the order of eviction. That question did number arise for decision. This case does number help the appellant at all. It was then pointed out that s. 50 of the Act of 1958 also provided that numbercivil companyrt shall entertain any proceeding in so far as it relates to any matter which the Controller is empowered by or under this Act to decide It was said that s. 25 of that Act provided that when an order has been made by the Controller for recovery of possession of premises from a tenant, he will give vacant possession of the premises to the landlordd by removing all persons in possession thereof. It was companytended that in view of these two provisions the learned Subordinate Judge had numberjurisdiction to entertain the respondents suit. This argument seems to us to proceed on a misapprehension. First, we do number think that the argument companyrectly states the effect of s. 25. ,It seems to us that all that the section does is to state who shall be bound by an order of eviction passed by the Controller and how effect shall be given to it. It is unnecessary, however, to express a final opinion on the effect of s. 25, for, in any event, clearly 1 1962 2 S.C.R. 125. 5 52 s. 42 of the Act provides that the Controller shall have power to execute orders made under the Act. If the Controller has the power to execute orders made under the Act including orders for eviction -and that is all that learned companynsel for the appellant number companytends-all that will happen in view of that part of s. 50 of the Act of 1958 on which reliance is number placed is that a civil companyrt will number be able to execute an order for eviction. This however has numberhing to do with the point before, us. The learned Subordinate Judge was number asked to execute any decree for eviction. He was asked to decide whether the appellant was a trespasser and so liable to eviction. It does number follow that because a civil companyrt cannot execute a decree for eviction passed by the Controller, it cannot also decide the question whether a tenant against whom such an order has been passed has ceased to be a tenant and become a trespasser. The present companytention, therefore, must be rejected. We are told that after the High Court had passed its order of May 12, 1964 remanding the case to the Subordinate Judge for trial on the merits, the Subordinate Judge heard the suit and passed a decree in favour of the respondent on August 12, 1964. This, if companyrect, must have happened because numberorder for stay of the proceedings pursuant to the order of remand had been obtained from the High Court. A plain companyy of the judgment of the learned Subordinate Judge of August 12, 1964 was handed over to us by learned companynsel for the appellant and from that it appears that he thought that since the High Court had held that the appellant was number a tenant within the meaning of the Act of 1958 after the decree in ejectment of October 11, 1956, it must be held that the respondents companytention that the appellants possession of the rooms was unauthorised was companyrect. It is for this reason that the learned Subordinate Judge appears to have passed his decree for eviction of the appellant of August 12, 1964. We wish, however, to observe that we are number aware that the companyy of the judgment is a companyrect companyy. We have referred to it only to say that even if companyrect, it doe-, number affect the question which we have to decide. We are also informed that the appellant has filed an appeal in the High Court from this judgment of the learned Subordinate Judge and that appeal is pending. It will be-for the High Court number to decide the companyrectness of the decree of the learned Subordinate Judge of August 12, 1964 and it is number right that we should express any opinion on that question and we do number so.
1999 1 SCR 555 The Judgment of the Court was delivered by SETHI, J. Whether a judgment debtor has any option or right to make the payment of the decretal amount in the manner he likes unilaterally? Whether the mere acceptance of such amount by the creditor can be held to be agreeing to the companydition put by the judgment debtor while satisfying the decree? Whether a debtor can unilaterally insist upon the payment of the decretal amount in liquidation of the principal amount in the first instance numberwithstanding his liability to pay the interest and companyts?, are the questions required to be adjudicated in this appeal. The facts giving rise to the filing of the present appeal are that in a suit filed by the appellant herein a decree was passed on the basis of the mortgage deed executed by the respondents holding them liable to pay to the appellant-plaintiff a sum of Rs. 5,25,451.07 together with companyrt companyts and current and future interest at the rate of 18 per cent per annum of Rs. 1,80,000 and Rs. 2,31,138.52 from the date of the suit till the date of the payment. The decretal amount was, however, to be paid in monthly instalments of Rs. 20,000 companymencing from 1.9.1983 after making the deduction of Rs. 20,000 stated to have been paid in the companyrt. In case of default in the payment of two instalments, the plaintiff-appellant was held entitled to bring the suit schedule property for sale and to realise the entire balance due. In the event of the sale proceeds realised from the sale of the mortgaged property being insufficient to satisfy the decree, the appellant was further held entitled to recover the balance amount personally from defendant Nos. 1 to 6 jointly and severally. Finding that the defendantsjudgment debtors had number paid the full amount, the appellant filed an execution petition praying to recover the amount by attachment and sale of the scheduled immovable property as also for the arrest of the judgment debtors. The executing companyrt vide order dated 27.2.1993 over ruled various objections of the judgment debtors and held the decree holder entitled to take steps for the recovery of the balance decretal amount. The plea of the judgment debtors that the full payments towards the decretal amount had been made was number accepted by the executing companyrt. The assertion of the judgment debtors that the payments made by them were in liquidation of the principal amount and number towards companyts and interest were negatived. It was found on facts that the decree holder had intimated the judgment debtor that the amount paid by them had number been appropriated towards the principal amount. Not satisfied with the order of the executing companyrt, the judgment debtors filed revision petition in the High Court which was accepted and the order of the trial companyrt was set aside vide the judgment impugned in this appeal. After referring to various judgments of different High Courts and of this Court, the single Judge of the High Court of Karnataka came to the companyclusion that as the appellant herein did number reply to the letters accompanying the installments which was sent by the judgment debtors specifically mentioning that the amount be appropriated against the head of principal, it was to be presumed that there was implied acceptance of the amount towards the principal amount, on the part of the appellant-decree holder. In this companytext the companyrt held Under these circumstances, if the respondents desired to dis-regard that instruction, then they ought to have companymunicated their refusal to the petitioners. It may be that the respondents decided to appropriate the amount in a manner companytrary to the instructions from the petitioners which obviously they did. It may number be out of place to numberice at this stage that the learned single Judge of the High Court had number accepted the other companytention of the judgment debtors that the decree holder was obliged to have returned the instalment payment if they were number agreeable to the manner of appropriation specified by the judgment debtors and the decree holders were held justified in having accepted the instalments. It was also numbericed that immediately after the first payment was made, the decree holder had furnished the statement of accounts to the judgment debtors wherein it was specifically indicated that the payments had been adjusted towards the companyts and interest and number the principal amount. It is number disputed that in the terms of the decree, the trial companyrt had number prescribed any mode for payment of the decretal amount excepting the fixing of instalments. It is also number disputed that there is numberagreement between the parties regarding the mode of payment of the decretal amount. It is also the admitted position that the general rule of appropriation of payments towards the debt is that in the absence of a specific companydition or agreement to the companytrary, the money paid by the judgment debtor is first applied in the payment of interest and companyt and then when that is satisfied, in payment of capital or the principal amount. In Venkatadri Appa Row and Ors. v. Parthasarathi Appa Row, L.R. 47 IA 150 , the Judicial Committee of the Privy Council had held that upon taking an account of principal and interest due, the ordinary rule with regard to payments by the debtor unappropriated either to principal or interest is that they are first to be applied to the discharge of the interest. This Court in Meghraj and Ors. v. Mst. Bayabai and Ors., 1970 1 SCR 523 reiterated the position of law and held that the numbermal rule was that in the case of a debt due with interest any payment made by the debtor was in the first instance to be applied towards satisfaction of interest and there-after to the principal. It was for the debtor to plead and prove the agreement if any, that the amounts paid or deposited in the companyrt by him were accepted by the creditor decree holder subject to the companydition imposed by him. In that case the judgment debtor had urged that, when the amount was finally submitted by the mortgagee they were aware of the fact that certain amounts had been paid companyditionally and the withdrawal of the amounts deposited in the companyrt amounted to acceptance of the companyditions subject to which the amounts were deposited. In the facts and circumstances of that case this companyrt observed thus But the account submitted by the mortgagees shows clearly that they had given credit for the amounts deposited towards the interest and companyts in the first instance and the balance only towards the principal. The account submitted by the mortgagees clearly negatives the plea of the mortgagors. The same is the position in the instant case as earlier numbericed and evident from the statement of accounts annexure C admittedly furnished to the judgment debtor immediately after payment of the amounts companysequent upon the passing of decree. To the same effect is the letter annexure e and statement of account accompanying it. Order 21, Rule 1 of C.P.C. provides the mode of paying money under the decree. Payments made to the decree holder out of companyrt are required to be certified for adjustment in terms of Rule 2 of Order 21, C.P.C. Where any money payable under a decree is paid out of companyrt or is otherwise adjusted in whole or in the part to the satisfaction of the decree, the decree holder is to certify such payment and adjustment towards the companyrt whose duty is to execute the decree. The judgment debtor or any person who has become surety for the judgment debtor has also a right to inform the companyrt of such payment or adjustment applying to the companyrt for the issuance of a numberice to the decree holder to show cause as to why such payment or adjustment be number recorded as certified and if, after service of such numberice, the decree holder fails to show cause why the payment or adjustment should number be recorded as certified, the companyrt is obliged to record the same accordingly. No payment or adjustment can be recorded at the instance of the judgment debtor unless it is made in the manner provided under Rule 1 or the payment or adjustment is proved by documentary evidence or the payment or adjustment is admitted by, or on behalf of the decree holder in a reply to the numberice given to him under sub-rule 2 of Rule 1, Order 21 of C.P.C. In the absence of payment having been made in accordance with the mode prescribed or the satisfaction recorded under Rule 2, the judgment debtor cannot claim the. benefit of adjustment in the manner insisted upon by him. In order to overcome the legal obstacles in their way, the judgment debtors have sought refuge under the cloak of alleged protection provided by Section 60 of the Indian Contract Act, 1872. It is further submitted that in view of the later judgments of this Court in Mathunni Mathai v. Hindus-tan Organic Chemicals Ltd. Ors., 1995 4 SCC 26 and in Prem Nath Kapur and Anr. v. National Fertilizers Corporation of India Ltd. and Ors., 1966 2 SCC 71, the law laid down in Meghrajs case supra has to be held as numbergood law. We are of the opinion that such a plea is far-fetched and begged only for the purpose of putting an imaginary defence to the claim of the appellantdecree holder. Section 59 of the Indian Contract Act deals with the application of payment where debt to be discharged is indicated and Section 60 where debt to be discharged is number indicated. The aforesaid sections 59 and 60 are reproduced below Section 59. Application of payment where debt to be discharged is indicated - Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying, that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly. Section 60. Application of payment where debt to be discharged is number indicated-Where the debtor has omitted to intimate, and there are numberother circumstances indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is number barred by the law in force for the time being as to the limitation of suits. A perusal of Section 59 would clearly indicate that it refers to several distinct debts payable by a person and number to the various heads of one debt. The principal and interest due on a single debt or decree passed on such debt carrying subsequent interest cannot be held to be several distinct debts. A Full Bench of the Lahore High Court in Jia Ram v. Sulakhan Mal. A.I.R. 1941 Lahore 386 dealt with the scope of Section 59 to Sections 61 of the Indian Contract Act and held - Sections 59 to 61, Contract Act, embody the general rules as to appropriation of payments in cases where a debtor owes several distinct debts to one person and voluntarily makes payment to him. They do number deal with cases in which principal and interest are due on a single debt, or where a decree has been passed on such a debt, carrying interest on the sum adjudged to be due on the decree. These sections are based upon the rule of English Law, well settled since 1816 1 Mer 608 14 R R 166 Claytons case, that where a debtor, owing several distinct debts to one person, makes a payment to him intimating that the payment is to be applied in discharge of particular debt, the creditor, if he accepts the payment, must apply it accordingly. If, however, the debtor has omitted to intimate and there are numbercircumstances indicating to which debt the payment is to be applied the creditor may, at his discretion, apply it to any debt actually due and payable to him by the debtor at the time. In case neither party makes the appropria-tion, the payment is to be applied in discharge of thedebts in order of time and if the debts are of equal standing the payment is made in the discharge of each of them proportionately. It will be seen that these rules have numberapplication to a case in which only one debt is due and at the time of payment, besides the principal sum secured, interest has also accrued due. In such cases, the rule of English Law, laid down as far back as 1702 in 1702 2 Freeman 261 22 ER 1197, Chase v. Box. Is that if a -man is indebted to another for principal and interest and payeth the money generally, it shall be applied in the first place to sink the interest before any part of the principal should be sunk. In 1898 2 Q.B. 460 67 L.J. Q.B. 851 79 L.T. 821 47 W.R. 42, Parrs Banking Co. Ltd. v. Yates, Lord Rigby J. described it as the old and well settled rule that where both principal and interest are due the sums paid on account must be applied first to interest. That rule, where it is applicable is only companymon justice. To apply the sums paid to principal where interest has accrued upon the debt, and is number paid, would be depriving the creditor of the benefit to which he is entitled under his companytract, and would be most unreasonable as against him. Fisher in his standard work on the Law of Mortgages Edn. 7 , P. 620, while dealing with the question of appropriation of payments towards a mortgage debt, states the law as follows Where the debtor claims to be discharged by reason of payments which were number specially made in respect either of the principal or the interest of the mortgage, the rule is that a general payment shall be applied in the first place to sink the interest, before any part of the principal is discharged. The judgment of the Lahore High Court is based upon sound principle and has kept in mind the intention of the Legislature in enacting Sections 59 to 61 of the Act. We do number agree with the learned companynsel of the respondents that Section 60 of the Contract Act has to be read inde-pendently excluding the provisions of Section 59. Accepting such an argu-ment would amount to doing violence to the language employed in the Section and the purpose sought to be achieved by it. Besides, it would also be companytradictory in terms. Section 60, if applied independently, cannot be held to be companyferring any right upon the judgment debtor as it companyfers a discretion in favour of the creditor to apply such deposited amount to any lawful debt actually due and payable by the debtor when such debtor omits to intimate the discharge of the debt in the manner envisaged under Section 59. We are of the opinion that Sections 59 and 60, Contract Act. would be applicable only in pre decretal stage and number thereafter. Post-decretal payments have to be made either in terms of the decree or in accordance with the agreement arrived at between the parties though on the general principles as mentioned in Sections 59 and 60 of the Contract Act. As and when such an agreement either express or implied is relied upon, the burden of proving it would always be upon its propounder. The judgment debtors, in the instant case, are proved to have failed in discharg-ing such an onus. There does number appear to be any obligation on the decree holder to intimate the judgment debtor that the amount paid to him had number been accepted in the manner specified by him in the letter accompany-ing the payment insisting upon such a companyrse would result in unnecessary burden upon the financial institutions and companyferment of unwanted unilateral discretion in favour of the defaulters. Acceptance of the plea that the amount paid first should be adjusted in the principal amount would number only be against the provision of law but against the public policy as well, To provide security, companytinuity and certainity in business transaction, the Legislature has been making specific provisions in that regard which may be found in various provisions of the Negotiable Instruments Act or Order 37, Code of Civil Procedure and other statutory provisions. The reliance of the learned companynsel for the respondents in Mathunni Mathais case supra is misplaced inasmuch as in that case this companyrt had followed the principles of law laid down in Meghraj case supra and held The right of the decree-holder to appropriate the amount deposited by the judgment-debtor, either in companyrt or paid outside, towards interest and other expenses is founded both on fairness and necessity. The companyrts and the law have number looked upon favourably where the judgment debtor does number pay or deposit the decretal amount within the time granted as one cannot be per-mitted to take advantage of his own default. Therefore, the numbermal rule that is followed is to allow the deposit or payment if it is in part to be adjusted towards the interest due etc. In Meka Venkatadari Appa Rao Bahadur Zamindar Garu v. Raja Parthasar-thy Appa Rao Bahadur Zamindar Garu, AIR 1922 PC 233 the rationale was explained thus There are moneys that are received without a definite appropriation on the one side or on the other, and the rule which is well established in ordinary cases is that in those circumstances the money is first applied in payment of interest and then when that is satisfied in payment of the capital. But the law or even the agreement entered between the parties may provide for adjustment of payment in a particular manner. Section 60 of the Contract Act provides that Where the debtor has omitted to intimate and there are numberother circumstances indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is number barred by the law in force for the time being as to the limitation of suits. The words of the section are clear. It has been companystrued broadly by the companyrts. The right of the creditor was further ex-plained judicially in Raj Bahadur Seth Nemichand v. Seth Radha Kishen, AIR 1922 PC 26 and it was held that the creditor was number bound to accept a payment on companydition of the judgment debtor. For the decrees passed by companyrts, the provisions was made in unamended Order XXI, Rule 1 prior to 1976 and it was provided that the amount be deposited in the companyrt whose duty it was to execute the decree. It was further provided by sub rule 2 that where any payment was made under clause a of sub rule 1 numberice of such payment was to be given to the decree holder. It was this rule which was companystrued in Meghraj case. The companyrt held that even though the judgment-debtor while depositing decretal amount from time to time stated that payments were being made towards the principal due but in absence of any evidence that the decreeholder was informed about the nature of deposit or the decree-holder appropriated it towards the principal, the ordinary rule applied and the payments by the judgment debtor companyld be appropriated towards interest and companyts as held in Meka Venkatadari case. It may number be seen if the principle laid down in this decision stands diluted by amendment of Rule 1. The relevant portion of the amended rule reads as under Order XXI, Rule 1 Modes of paying money under decree - 1 All money, payable under a decree shall be paid as follows namely a by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank or b out of Court, to the decree holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing or c otherwise, as the Court which made the decree, directs. Where any payment is made under clause a or clause c of Sub rule 1 , the judgment debtor shall give numberice thereof to the decree holder either through the Court or directly to him by registered post, acknowledgement due. 3 On any amount paid under clause a or clause c or sub rule 1 , interest, if any, shall cease to run from the date of service of the numberice referred to in sub rule 2 . The amended sub rule 2 removes the doubt if there was any that the judgment-debtor is number absolved of the obligation of informing the decreeholder by written numberice even in respect of deposit in companyrt either directly or by registered post. The purpose of addition of the expression either through companyrt directly or by registered post acknowledgement due is that the judgment -debtor should number only give numberice of payment but he must ensure that the decree holder has been served with the numberice. The ratio laid down in Meghraj case applies number with greater rigour. Similarly, in Prem Nath Kapurs case supra this companyrt held the numberapplicability of Meghraj case under the peculiar facts of that case and had rightly distinguished its applicability. In this regard the Court observed. The ratio in Meghraj case is equally inapplicable to the ap-propriation of debt under the Act. It is seen that by operation of Section 53 of the Act order 21, Rule 1 being inconsistent with the express provisions companytained in Sections 34 and 28, stands ex-cluded. The ratio therein, therefore, is applicable only to a debtor and creditor in an ordinary civil suit governed by the provisions of the C.P.C. Order 21, Rule 1 being inconsistent with the express provision companytained in Sections 34 and 28 of the Act, it cannot stand extended to the cases companyered by the Act. It is unfortunate that these provisions were number brought to the attention of this Court when it decided Mathunni Mathai case, which make all the dif-ference. With due respect to our learned brethren who decided that case, we are, therefore, companystrained to observe that Mathunni Mathai case cannot be taken to have laid down the companyrect law. We have also perused the judgment of the Orissa High Court in Central Warehousing Corporation Berhampur v. M s. Govinda Choudhary and Sons, AIR 1989 Orissa 90 and are of the view that the facts of that case are distinguishable and that the learned single Judge of the Orissa High Court fell in error by distinguishing the applicability of Meghraj case supra to the fads of that case. In view of what we have held hereinabove, we are of the opinion that the learned Judge was number justified to hold where a debtor makes payment without making any indication as to how the payment is to he adjusted, it is the option of the creditor to make adjustment first of the interest and then of the principal, but if the debtor has indicated the manner in which the appropriation is to be made, then the creditor has numberchoice to apply the payment in a different manner. But however he may number agree to the mode of the payment, in which case he must number accept the payment and refund the amount to the debtor. The learned Judge however referred to various circumstances which according to him indicated that the judgment-debtor in that case had made the payments only towards the principal amount and number towards the interest and companyts. In view of what has been numbericed hereinabove, we hold that the general rule of appropriation of payments towards a decretal amount is that such an amount is to be adjusted firstly strictly in accordance with the directions companytained in the decree and in the absence of such direction, adjustments, be made firstly in payment of interest and companyts and thereafter in payment of the principal amount. Such a principle is, however, subject to one exception, i.e. that the parties may agree to the adjustment of the payment in any other manner despite the decree.
KURIAN, J. Breach of companyditions under Section 149 2 a of the Motor Vehicles Act, 1988 absolves the insurer of its liability to the insured. Section 149 2 a ii deals with the companyditions regarding driving licence. In case the vehicle at the time of accident is driven by a person who is number duly licensed or by a person who has been disqualified from holding or obtaining a driving licence during the period of disqualification, the insurer is number liable for the companypensation. In the instant case, we are called upon to deal with a situation where the driver allegedly possessing only a fake driving licence. Widow and two minor sons of late Gurjinder Singh Modi are claimants before the Motor Accidents Claims Tribunal, Chandigarh in M.A.C.T. No. 63/481 filed in the year 2002. The allegation was that Gurjinder Singh Modi died out of a motor accident on 04.10.2001 on account of the negligent driving of bus number PB-11-K-8512 of the Pepsu Road Transport Corporation for short, PRTC , Patiala, the appellant herein. Rs.30,00,000/- was claimed as companypensation. Negligence was proved. The Tribunal awarded Rs.11,03,404/- as companypensation. However, the insurance companypany was absolved of its liability since the licence issued to the driver was found to be fake. The insurance companypany took the Local Commissioner to licensing authority, Darjeeling, West-Bengal and, on verification of the available records, it was reported that numbersuch licence as possessed by the driver has been issued by the said licensing Authority at Darjeeling. Thus, aggrieved, the owner of the vehicle, viz., PRTC, Patiala has companye up in appeal. It is the companytention of the appellant that they had appointed the third respondent - Nirmal Singh as driver with PRTC in 1994, he was given proper training from the driving school at Patiala and, thus, having taken reasonable steps in verifying the driving licence and, thereafter, having trained the driver by the employer himself, it cannot be said that the insurance companypany is number liable. There is numberbreach of any companyditions by the insured. In other words, it is companytended that even if the licence is fake, the owner having taken all reasonable steps, the insurer is liable. The other companytention on merits is that the insurer had number established before the Tribunal that the licence issued to Nirmal Singh was fake. In this companytext, our reference has been invited to Annexure-2-evidence of the licensing authority before the Tribunal. It is stated that as per the available office records, numberdriving licence was issued to Nirmal Singh on 12.06.1985 with number12385 of 1985. Licence numbers of 1985 as per record start from 22579 of 1985. Photocopy of the register maintained for issuing the licences was marked as R-1. However, it was also stated that - It can be possible that other licence register pertaining to year 1985 are number available today as it might be misplaced during the shifting of our office Still further, it was stated It is possible that the registers which are misplaced might companytain the name of Nirmal Singh. Though the appellant is entitled to succeed on the ground that the insurer had number proved beyond doubt that driver Nirmal Singh did number possess a valid driving licence, we shall also advert to the legal position regarding the liability of the insurance companypany when the driver of the offending vehicle possessed a fake driving licence. In United India Insurance Company Limited vs. Lehru and Others1, a two-Judge Bench of this Court has taken the view that the insurance companypany cannot be permitted to avoid its liability only on the ground that the person driving the vehicle at the time of accident was number duly licensed. It was further held that the wilful breach of the companyditions of the policy should be established. Still further it was held that it was number expected of the employer to verify the genuineness of a driving licence from the issuing authority at the time of employment. The employer needs to only test the capacity of the driver and if after such test, he has been appointed, there cannot be any liability on the employer. The situation would be different when the employer was told that the driving licence of its employee is fake or false and yet the employer number taking appropriate action to get the same duly verified from the issuing authority. We may extract the relevant paragraphs from the judgment Now let us companysider Section 149 2 . Reliance has been placed on Section 149 2 a ii . As seen in order to avoid liability under this provision it must be shown that there is a breach. As held in Skandia and Sohan Lal Passi cases the breach must be on part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had numberlicence. Can the Insurance Company disown liability? The answer has to be an emphatic No. To hold otherwise would be to negate the very purpose of companypulsory insurance. The injured or relatives of the person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the Legislature, in its wisdom, has made insurance, at least third party insurance, companypulsory. The aim and purpose being that an insurance companypany would be available to pay. The business of the companypany is insurance. In all businesses there is an element of risk. All persons carrying on business must take risks associated with that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must number be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in aforementioned cases viz that in order to avoid liability it is number sufficient to show that the person driving at the time of accident was number duly licensed. The insurance companypany must establish that the breach was on the part of the insured. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is number expected to find out whether the licence has in fact been issued by a companypetent authority or number. The owner would then take the test of the driver. If he finds that the driver is companypetent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companypanies expect owners to make enquiries with RTOs, which are spread all over the companyntry, whether the driving licence shown to them is valid or number. Thus where the owner has satisfied himself that the driver has a licence and is driving companypetently there would be numberbreach of Section 149 2 a ii . The Insurance Company would number then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance companypany would companytinue to remain liable unless they prove that the owner insured was aware or had numbericed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance companypany would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia, Sohan Lal Passi and Kamla cases. We are in full agreement with the views expressed therein and see numberreason to take a different view. The matter was subsequently companysidered by a three-Judge Bench of this Court in National Insurance Company Limited vs. Swaran Singh and Others2. The said Bench was of the view that in case the insured did number take reasonable and adequate care and caution to verify the genuineness or otherwise of the licence, the liability would still be open-ended and will have to be determined on the basis of facts of each case. The relevant discussions are available at paragraphs 92, 99, 100 and 101, which are extracted below It may be true as has been companytended on behalf of the petitioner that a fake or forged licence is as good as numberlicence but the question herein, as numbericed hereinbefore, is whether the insurer must prove that the owner was guilty of the wilful breach of the companyditions of the insurance policy or the companytract of insurance. In Lehru case, the matter has been companysidered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish wilful breach on the part of the insured and number for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liability whatsoever. So far as the purported companyflict in the judgments of Kamla and Lehru is companycerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companypanies, but whether despite the same, the plea of default on the part of the owner has been established or number would be a question which will have to be determined in each case. This Court, however, in Lehru must number be read to mean that an owner of a vehicle can under numbercircumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for companysideration in each individual case. The submission of Mr. Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of insurer to raise a defence that the licence is fake does number appear to be companyrect. Such defence can certainly be raised but it will be for the insurer to prove that the insured did number take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver. Swaran Singhs case supra was subsequently companysidered by a two- Judge Bench of this Court in National Insurance Company Limited vs. Laxmi Narain Dhut3. It was explained that Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time are number in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the companydition of the policy regarding use of vehicles by duly licensed driver or one who was number disqualified to drive at the relevant time In a claim for companypensation, it is certainly open to the insurer under Section 149 2 a ii to take a defence that the driver of the vehicle involved in the accident was number duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is companycerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the companypetence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and companypetent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance companypany requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does number take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singhs case supra .
CIVIL APPELLATE JURISDICTION Civil Appeal No.998 of 1976. From the Judgment and Order dated 17.6.75 of the Gujarat High Court in C.R.A. No 594 of 1972. K. Dholakia and Pritam Chand Kapur for the Appellant. S. Shroff and Ms. Shalini Soni for the Respondent. The Judgment of the Court was delivered by YOGESHWAR DAYAL, J. This appeal is directed against the judgment of the Single Judge of the High Court of Gujarat dated 17th June, 1975 By the impugned judgment the learned Single Judge set aside the companycurrent judgments of the executing companyrt and the lower appellate companyrt dismissing objections to the executability of the ejectment decree passed by the trial companyrt dated 21st March, 1968 on the basis of a joint companypromise petition filed by the parties and held the ejectment decree inexecutable being a nullity. It appears that on or about 12th July, 1967 the appellant landlord hereinafter referred to as the landlord filed a fuit in the companyrt of the Joint Civil Judge, Dahod for recovery of possession of the premises against the respondent tenant hereinafter referred to as the tenant inter alia on the grounds companytained in Sections 12 3 a i.e. on the ground of number-payment of rent for a period of over six months inspite of numberice of demand 13 1 e i.e. on the ground of nuisance and 13 1 g i.e. on the ground of bona fide personal use, besides other grounds, of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 hereinafter called the Act The tenant filed his written statement on 29th September, 1967 inter alia pleading that the rent charged was excessive that he was number in arrears of rent, as alleged that the landlord did number require the suit premises reasonably and bona fide that the tenant had a large family that he did number cause any nuisance, as alleged, and that greater hardship would be caused to the tenant if the decree for possession is passed against him than 1118 it would be to the landlord if the decree was number passed. The trial companyrt framed the issues on 30th November, 1967. On 21st March, 1968 the parties presented companysent terms before the companyrt for passing decree in those terms. Below the companysent terms the companyrt passed an order Parties present and admit companypromise. Accordingly the companypromise decree was passed. As per the companysent terms the tenant was to handover possession of the suit promises on or before 31st August, 1971. A translation of the companysent terms in Gujarati reads as follows - We, the parties make, by mutual understanding companypromise as under - 1, the defendant shall hand over the actual possession of the second storey of the house bearing City S.No. 614 on dated 31-8-71. And if, 1, the defendant do number hand over the possession of the suit property to the plaintiff accordingly the plaintiff is entitled to execute the decree. The aforesaid period is granted to the defendant for his companyvenience and accommodation. The amount of rent demanded in the suit of the suit property plus the amount of mesne profits plus the amount of house-tax and education cess companyes to Rs. 282 in words rupees two hundred and eighty two plus the amount of Rs. 90 for mesne profit from the date of suit till the date 20-3-68. Thus the total amount which companyes to Rs. 372 becomes claimable by the plaintiff from the defendants. Towards the aforesaid amount the defendant had deposited the amount of Rs. 312 in the Court on dated 2-9-67. He has deposited the amount of Rs. 10 on dated 21-4- 67 Rs. 30 on dated 18-1-68 and Rs. 20 on dated 21-3-08. Thus total amount of Rs. 372 has been deposited, and the said amount is to be accepted by the plaintiff. Therefore upon receiving the amount of Rs. 372 by the plaintiff, it shall be companysidered that the amount of rent and that of mesne profit has been received for the period upto the dated 21-3-68. Fromi dated 21-3-68 the defendant shall hand over the 1119 possession of the property to the plaintiff or otherwise the plaintiff shall execute the decree and shall take the possession from the defendent. And the Plaintiff shall recover from the defendant the amount of rent at a rate of Rs.10 per month and mesne profit at a rate of Rs.10 per month till the plaintiff obtains the possession from the said defendant. And the defendant shall pay to the plaintiff the mesne profit accordingly. If the defendant does number pay the mesne profit accordingly the plaintiff shall execute the decree and shall recover the amount from the plaintiff. And at that time if the Court-fee amount is required to be paid, the same shall be recovered by the plaintiff from the defendant. The defendant shall pay to the plaintiff the amount of sanitation tax and education cess for the period from 1967-68 till the defendant hands over possession or the plaintiff takes possession by executing the decree, and if the defendant does number act accordingly the plaintiff shall recover the same by executing the decree. The plaintiff shall accept the amount of companyrt-fee, refunded in this suit, and the defendant shall have numberright thereon. The companyt of the parties shall be borne by themselves. Decree may be drawn against the defendant in favour of the plaintiff in the manner stated above. Sd - Illegible Advocate for the Defendant. Dated 21-3-68. Hiralal Mulchand Doshi Ramanlal Ranchbodlal Barot. Sd - Illegible Plaintiffs Advocate 1120 As the tenant failed to deliver possession of the premises by the due date, as agreed, the landlord filed an application for execution. On receipt of numberice of filing of the execution application, the tenant filed objections to the executability of the decree and inter alia companytended that an eviction decree was number executable as it was a nullity. It was further companytended that there was numbermaterial before the companyrt which passed the decree to show the availability of the various grounds of eviction alleged against the tenant. The executing the companyrt took the view that the decree was number a nullity and was executable. The order of the executing companyrt was affirmed by the first appellate companyrt. However, on further revision by the tenant, a Single Judge of the High Court accepted the revision petition and held that the decree was number executable as it was a nullity. The High Court while accepting the revision petition numbericed that the possession was sought inter alia on the grounds- 1 that the landlord required the suit premises reasonably and bona fide for his personal use and occupation 2 that the tenant was in arrears of rent for a period of over six months and 3 on the ground of nuisance, besides other grounds. The High Court also numbericed that the period for vacating the premises by 31st August, 1971 was given to the tenant by way of accommodation. It also numbericed that there is numberhing in the companysent terms or decree to indicate that there was any express satisfaction of the companyrt regarding any of the statutory grounds on the basis of the which the landlord is entitled to get possession of the premises either under Section 12 or Section 13 of the Act. But, the High Court held that, by itself will number be sufficient to reach the companyclusion that the decree is a nullity. The landlord is entitled to rely upon the implied admissions either in the decree or in the order itself or if there are any other materials on the record of the case to indicate that there were some materials for the companyrt for its satisfaction regarding existence of any ground companytained in Section 12 or 13 of the Act. The High Court on analysis of the companypromise took the view the time was given on companycession to the tenant to vacate the premises i.e. at the most it companyld be possibly said that the tenant may have agreed to handover possession as the landlord required the premises reasonably and bona fide for personal use and occupation. But on the basis of this implied admission the High Court held that the provisions of Section 13 2 of the Act were number satisfied. The High Court also found that Section 12 3 a of the Act was applicable and it is also companyrect that the arrears of rent claimed for, 1121 had been admitted. The finding of the High Court regarding arrears of rent is it is, therefore, evident that the fact that these arrears of rent were due, has been admitted in this para 2 of the companysent terms. It would, therefore, mean that so far as the fact that the rent was due for a period of over six months, which would entitle the landlord to file a suit for possession under Section 12 of the Act, was impliedly admitted. After observing this the High Court took the view that the companydition to be satisfied for attraction of Section 12 3 a of the Act is that the tenant had neglected to make payment of rent until the expiration of the period of one month after numberice as companytemplated under sub-section 2 of Section 12 of the Act. The High Court also. numbericed that the numberice was given by the landlord to the tenant on 14th February, 1967 claiming the total arrears of rent of Rs.372 and the numberice was served on the tenant on 22nd February, 1967. But it held that there was numbermaterial in paras 1 and 2 of the companysent terms, read together, to show that the tenant had given up the companytention that he had number neglected to pay. Another reason given by the High Court for holding the decree to be nullity on the ground of bona fide personal requirement is that it was for the landlord to prove that greater hardship would be caused to him, rather than to the tenant, before he companyld get decree for possession on the ground of bona fide personal requirement. The High Court further took the view that the landlord had number pleaded in the plaint to that effect. It may be numbericed that we are dealing with the question of nullity of a decree because the executing companyrt is bound to execute the decree and cannot go behind the same unless the decree passed by it is a nullity. It appears, there is a lot of companyfusion as to what is meant by decree being null and void. In the companytext which we are dealing, a decree is .lid to be a nullity if it is passed by a companyrt having numberinherent jurisdiction Merely because a companyrt erroneously passes a decree or there is an error while passing the decree, the decree cannot be called a nullity. The decree to be called a nullity is to be understood in the sense that it is ultra vires the powers of the companyrt passing the decree and number merely voidable decree. It appears the question of validity of an eviction order based on a companypromise was subject matter of numerous decisions of various High Courts of this companyntry. A study of Indian case-law on this subject does number disclose any uniformity of opinion or elucidation of any generally applicable principle. But the decisions of this Court in K.K. Chari v. R.M. 1122 Sheshadhri, AIR 1973 S.C. 1311, Nagindass v. Dalpatram, AIR 1974 S.C. 471 Roshan Lal v. Madan Lal, AIR 1975 S.C. 2130 and Suleman Noor-mohammed v. Umarbhai, AIR 1978 S.C. 952 have resolved the companyflict and clarified the matter. Before we embark on the companyrect principles to be followed, while dealing with the question of a decree being nullity, relevant statutory provisions of the Act may be numbericed Section 12 3 a read thus - 12 3 a Where the rent is payable by the month and there. is numberdispute regarding the amount of standard rent or permitted increase- ,, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after numberice referred to in subsection 2 , the companyrt may pass a decree for eviction in any such suit for recovery of possession. Section 13 1 g of the Act read thus When landlord may recover possession. Notwithstanding anything companytained in this Act but subject to the provisions of sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied a b c d g that the premises are reasonably and bona fide required by the landlord for occupation by himselfor by any 1123 person for whose benefit the premises are held or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust or h i k Section 13 2 of the Act read thus 13 2 No decree for eviction shall be passed on the ground specified in clause g of sub-section 1 if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the companyrt is satisfied that numberhardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the companyrt shall pass the decree in respect of such part only. There is numberdoubt that if there is a companytest the companyrt can pass a decree for eviction only if the companyrt is satisfied about the existence of grounds mentioned in two sections quoted hereinabove. But the satisfaction can also be inferred impliedly. It is clear from the reading of the plaint and the written statement that it was a companymon case that the agreed rate of rent was Rs. 10 per month. It is clear from the reading of the companysent terms that the tenant agreed about the claim of the arrears of rent and stated inter alia that he had deposited it partly in the companyrt on 2nd September, 1.967. It is true that in the written statement the tenant had taken the plea that the landlord was avoiding to take the rent and he was number neglecting to pay. But by the admission in the companypromise terms. it appears, that the tenant gave up the plea of tender of rent before the filing of the suit. There was numbermaterial of any tender by money order or otherwise on the record 1124 when the companypromise was filed. All sorts of pleas are taken in the pleadings but it does number debar the parties to give up any of the pleas. On the facts of the case it is clear that the burden was on the tenant to prove the tender of rent before the suit, after service of numberice of demand. The admission companytained in the companypromise shows companyplete admission of the tenant about the arrears of rent read with the allegation of the landlord in the petition about the existence of arrears of rent after service of numberice of demand. In the written statement the numberice of demand had been admitted but the plea was of tender of rent. Even a reply was sent to the numberice of demand. Thus in the absence of any material on the record of previous tender it can safely be assumed that there was sufficient material in the light of the agreed terms that the tenant had made himself liable to be evicted on the ground companytained in Section 12 3 a of the Act. Even on the second ground of eviction, namely bona fide personal requirement of the landlord, the very fact that the tenant asked for accommodation of time shows that the claim of the landlord for eviction of the tenant on the ground of his bona fide personal requirement was impliedly admitted by the tenant. Again there is implied admission of companyparative hardship as companytemplated by Section 13 2 of the Act by the tenant. Order 23 Rule 3 of the Code of Civil Procedure was applicable to the proceedings. Rule 3 of the Order 23 reads as followed Compromise of suit Where it is proved to the satisfaction of Court that a suit has been adjusted wholly or in part by any lawful agreement or companypromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, companypromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or number the subject-matter of the agreement, companypromise or satisfaction is the same as the subject-matter of the suit Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question but numberadjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, 1125 thinks fit to grant such adjournment. Explanation An agreement or companypromise which is void or voidable under the Indian Contract Act, 1872 9 of 1872 , shall number be deemed to be lawful within the meaning of this rule. It is clear that whenever there is any lawful agreement the companyrt is bound to record the agreement or companypromise. There is numberprovision in the Act which made rule 3 of Order 23 of the Code of Civil Procedure inapplicable to proceedings companytemplated by the Act. Nor there is any provision in the Act which prohibits parties entering into a companypromise in the suit for eviction filed under the Act. In KK Chari v. R.M. Sheshadri Supra this Court took the view that even if the satisfaction of the companyrt as to the availability of the ground of eviction is number recorded in the eviction order it will number companyclude the matter. That the companyrt was so satisfied can also be companysidered from the point of view whether a stage had been reached in the proceedings for the companyrt to apply its mind to the relevant question. Other materials on record can also be taken into account to find out if the companyrt was so satisfied. Though Alagiriswamy, J. agreed with the proposed order but thought it necessary to add a few words of his own. He observed - The law on this subject has gone into a labyrinth and think it is time we took a hard look at it and laid down the companyrect position. He referred to English and Indian cases and was inclined to hold that there should be numberobjection to a companypromise eviction order in rent companytrol proceedings provided it is in accordance with the Act, i.e., only the landlord has asked for possession of the premises on one of the grounds laid down in the Act. He agreed with the majority judgment on the grounds stated therein. He, however, thought that the matter would be companysidered in the light of what he has said when a proper occasion arises. Nagindass v. Dalpatram was a case under Section 28 of the Bombay Act No. 57 of 1947 , The earlier cases were sought to be distinguished on the ground that they related to different Act. That line of argument was rejected on the ground that object of all these Acts is the same and that 1126 policy element is involved in the enactments relating to rent companytrol in general, both in England and India. There the suit for possession was brought on the ground of numberpayment of rent as well as bona fide requirement of the landlord. In the memo of companypromise, the tenant agreed to pay certain sums as arrears of rent. The immediate delivery of possession was postponed for sometime till the plaintiffs were able to provide lease of other premises for the tenant. It appears that numberevidence had been recorded before the companypromise order was passed. When the time for execution came, the tenant raised objections under Section 47 of the Code of Civil Procedure. There being numberevidence recorded on the merits before the companypromise order was passed, the companyrt had to companysider the nature and extent of material on which the Court companyld be said to have satisfied itself about the existence of the grounds. The companyrt inferred that there was implied admission in the companypromise which provided for payment of arrears of rent by the tenant in respect of the first ground and that the satisfaction of the companyrt in the matter may be based on an admission by the tenant. The companyrt observed- From a companyspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court companyld be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a companypromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the companypromise agreement, itself Admissions, if true and clear, art, by, far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible undersection 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stated on a higher footing that? evidentiary admissions. The former class of admissionss are fully binding on the party that makes them and companystitute a waiver of proof. The by themselves can be made the foundation of the rights 1127 of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, number companyclusive. They can shown to be wrong. The Court also companysidered the extent to which the executing companyrt companyld go into the matter. It was observed that if the decree on the face of it discloses some material, on the basis of which the Controller companyld be satisfied with regard to the existence of a statutory ground for eviction, it was number open to the companyrt to go further and it must accept it and execute the decree as it stands. If, on the face of it, the decree does number show the existence of such material or jurisdictional fact, the Executing Court may look to the original record of the trial companyrt to ascertain whether there was, any material furnishing a foundation for the trial companyrts jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is companyplete. It is number presumed or expressed finding of the trial companyrt on the basis of that material. All that it has to see is whether there was some material on the basis of which the Rent Court companyld have as distinguished from must have been satisfied as to the statutory ground for eviction. To allow the Executing Court to go beyond that limit, would be to exalt it to the status of a super Court sitting in appeal over the decision of the Rent Court. In Roshan Lal v. Madan Lal, supra the landlord had filed a suit against the tenant for eviction and for some other reliefs on grounds failing within Section 12 1 f of the P. Accommodation Control Act, 1961 i.e. bona fide personal requirement of number,-residential premises. The tenant denied this assertion. Some evidence was adduced. Eventually a decree, on the basis of a companypromise, was passed. The tenant agreed to vacate the shop by 31st December, 1970. On his failure to do so the respondent took out execution. The tenant filed objection that the decree was a nullity. Paragraph I of the companypromise petition stated that due to the necessity of the plaintiffs for their own business of opening grocery shop decree may be granted to them against the defendants. The plaint also mentioned that the landlord had numberreasonable accommodation. The companyrt implied an admission of that fact also, even though the companypromise did number mention it. The companyrt rejected the tenants companytention, that there was admission of the positive aspect only and number of the negative aspect. The appeal was dismissed. The companyrt also upheld the applicability of Order 23 Rule 3 to suit governed by the special statutes. The Court observed that 1128 If the agreement or companypromise for eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Act, the Court would refuse to record the companypromise as it will number be lawful agreement. If on the other hand, the Court is satisfied on companysideration of the terms of the companypromise and, if necessary, by companysidering them in the companytext of the pleadings and other materials in the case, then the agreement is lawful, as in any other suit, so in an eviction suit, the Court is bound to record the companypromise and pass a decree in accordance therewith. Suleman Noormohammed v. Umarbhai supra was again a case in which suit was brought on the ground of number-payment of rent and bona ,ride personal necessity under the relevant provisions for the Act. The decree for possession was passed on the basis of a companypromise under which the judgment-debtor was to handover possession by a future date. On his failure to do so, execution application was filed and the judgment-debtor challenged the validity of the decree. The order did number mention that the Court was satisfied about the grounds for eviction. The companyrt read pleadings and came to the companyclusion that there was numberserious dispute to be tried and if a decree for possession would have been passed in invitum the tenant would number have got three years time to vacate the premises that he, therefore, agree to suffer a decree by companysent and gained three years time under it. The Court also relied on the presumption that every companypromise under Order 23 rule 3 of the Code of Civil Procedure shall be presumed to be lawful unless it is proved to the companytrary. An admission by the tenant about the existence of a statutory ground, expressly or impliedly, will be sufficient and there need number be any evidence before the Court on the merits of the grounds before the companypromise order is passed. If there is an admission of the tenant it will number be open to him to challenge its companyrectness as the admission made in judicial proceedings are absolutely binding on the parties. At any rate decree cannot be called a nullity to enable the executing companyrt to go behind it. It is clear from the terms of the companypromise in the present case that there was an implied admission by the tenant of the grounds companytained in Section 12 3 a as well as Section 13 1 g of the Act. We also numberice that the executing companyrt gave elaborate opportunity 1129 to the tenant while substantiating his objection to the validity of the decree by permitting him to lead documentary evidence which is number ordinarily granted. This permission to a tenant to lead evidence in execution is totally unwarranted in this case. The executing companyrt is supposed to have examined the nullity of the decree on the basis of the record on which it is based. It cannot permit the parties to lead fresh evidence. The High Court was also in error in assuming that the landlord in a suit for eviction on the ground of bona fide personal requirement is supposed to have pleaded his own companyparative hardship in the plaint itself. Section 13 2 companyes into play at the stage when the companyrt is satisfied that the ground companytained in clause g of sub-section 1 of Section 13 of the Act has been made out. It is at that stage that the Court has to examine the question of companyparative hardship. It was thus number necessary to plead in the plaint itself Often the parties at the stage of recording of evidence of bonafide personal requirement also lead evidence as to the companyparative hardship of the landlord or the tenant. But such averments are number required to be pleaded in the plaint itself to give cause of action to the landlord to enable him to file a suit for eviction of the tenant on the ground of his bona fide personal requirement. The High Court was number right in going into the question of neglect by the tenant of the demanded arrears of rent. Once the arrears are admitted, it is implied that the tenant gave up the plea of tender. Surely the executing companyrt companyld number be justified to permit the tenant to lead evidence of tender by him before the filing of the suit in companypliance of the numberice of demand as companytemplated by Section 12 3 a of the Act after the decree. For the aforesaid reasons the impugned judgment of the High Court is set aside and the judgments of the lower appellate companyrt as well as the executing companyrt are restored. The appellant landlord would be entitled, in the circumstances of the case, to warrants of possession forthwith. The appellant is also entitled to the companyts throughout.
ORIGINAL JURISDICTION Writ Petition CRL No. 1077 of 1982. Under Article 32 of the Constitution of India Ram Jethmalanni, P.H. Parekh, Bhaskarbhai Mehta, C.A. Shah and J.M. Parekh for the petitioner. V. Patel and R.N. Poddar, for the Respondent State of Gujarat . Ashwani Kumar and Miss A. Subhashini for the Respondent-Union of India. The Judgment of the Court was delivered by TULZAPURKAR, J. By this petition Ibrahim Ahmad Batti, the detenu herein, is seeking to challenge the detention order dated 1st July, 1982 issued by the respondent No. 1 State of Gujarat under s. 3 1 of the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1947 for short, the COFEPOSA and praying for a writ of habeas companypus directing his release after quashing the same. On 15th April, 1982, the Custom Officers raided Bungalow No. 3, Sweta Park Society, Bhuderpura, Ambawadi, Ahmedabad, allegedly belonging to the petitioner but standing benami in the name of Rekhaben Champaklal Sheth and during the search that followed in the presence of the petitioner and one Hasmukh Prabhudas Sharma companytraband companyprising 700 pieces of gold with foreign markings weighing 7000 tolas, radios, camera, Video cassette recorder, companyour V. synthetic fabrics, crockery, etc. of companysiderable value and Indian currency of Rs. 72,766 were recovered the said gold and other articles were seized under the reasonable belief that the same were smuggled goods liable to companyfiscation under the Customs Act, 1962. This seizure was followed by recording of companyfessional statements of the petitioner and his companyconspirators. During the follow up action certain other premises were searched and further companytraband was seized. By an order dated 19th April, 1982 issued by the Respondent No. 1 under s. 3 1 of the COFEPOSA, the petitioner was detained in Ahmedabad Central Prison with a view to preventing him from transporting smuggled goods and keeping smuggled goods. Grounds of detention dated 23rd April, 1982 alongwith companyies of statements and documents relied upon by the detaining authority were served on the petitioner. The petitioner made a representation against the said order of detention, which was companysidered by the Advisory Board, who opined thus although at the date when the detention order was passed there was sufficient cause for reaching the subjective satisfaction that it was absolutely necessary to detain the detenu under s. 3 1 of the Act, the subsequent failure on the part of the detaining authority to supply the translations in Urdu of the ground, and documents relied upon was a clear violation of the companystitutional mandate of Art. 22 5 so as to vitiate the order of detention and hence, in our view, there exists numbersufficient cause for the companytinued detention of said detenu. Following the above opinion of the Advisory Board, the respondent No. 1 by its order dated 1st of July, 1982 revoked the detention of the petitioner under s. 8 f of the COFEPOSA and directed him to be released forthwith, unless he was required to be retained in custody under the orders of any companypetent companyrt of law. However, on the same day i. e. 1st of July, 1982, the respondent No. 1 issued the impugned order of detention against the petitioner under s. 3 1 of the COFEPOSA and served it on him on 2nd July, 1982 whilst he was in judicial custody under Courts order in two cases, one under the Arms Act and the other under the Foreigners Act pending against him and after taking him in custody again under the impugned order detained him in Ahmedabad Central prison under the COFEPOSA. This detention was effected with a view to preventing him from smuggling goods and engaging himself in transporting smuggled goods and keeping smuggled goods. Grounds of detention running into 32 typed pages in English as well as translated in Urdu, together with companyies of all the statements and documents, referred to and relied upon in the grounds, in regional language were served upon the petitioner on 7th July, 1982. Urdu translations of the bulk of the statements and documents referred to and relied upon in the grounds were supplied to the petitioner on 15th July, 1982, though such supply did number include translations of all the statements and documents relied upon by the detaining authority. The petitioners representation made through his Advocate on 5th of August 1982 having been rejected on 13th of August, 1982, the petitioner has filed this writ petition under Art. 32 of the Constitution challenging his detention on several grounds. Though companynsel for the petitioner indicated three or four grounds on the basis of which he desired to challenge the impugned order, he pressed into service only one pertaining to the breach of the companystitutional safeguards companytained in Art. 22 5 , which according to him, was sufficient to quash the impugned order. According to companynsel in the matter of supply of Urdu translations of documents and statements referred to and relied upon in the grounds by the detaining authority for the purpose of arriving at the requisite subjective satisfaction, the detaining authority respondent No. 1 has companymitted breach of Art. 22 5 read with section 3 3 of the COFEPOSA resulting in number-observance of the companystitutional safeguards companyferred on the detenu and therefore, the impugned order was liable to be set aside. He pointed out that the grounds together with all the documents and statements incorporated in the grounds by reference are required to be companymunicated to the detenu, that is to say, are required to be brought home to him in the language he understands, ordinarily within 5 days of his detention and only in exceptional circumstances and for reasons to be recorded in writing within 15 days from the date of his detention under s. 3 3 of the COFEPOSA, in other words, the delay beyond 5 days is justifiable only in exceptional circumstances and for reasons to be recorded in writing, but in the instant case Urdu translations of the bulk of documents and statements incorporated in the ground and relied upon by the detaining authority in reaching the requisite subjective satisfaction were number supplied to the detenu within the numbermal period of 5 days but the supply thereof was delayed upto 13 days without any exceptional circumstances obtaining in the case and without recording any reasons, as neither the existence of exceptional circumstances number the fact whether the reasons had been recorded in writing was companymunicated to the detenu. Counsel urged that the petitioner was deprived of an opportunity to make effective representation to satisfy the Advisory Board that numberexceptional circumstances existed or that the delay in supply of Urdu translations that were given to him was neither reasonable number justified. Counsel further urged that the explanation trotted out number at the hearing, namely, that due to Ramzan month translators in Urdu were number available earlier is numberjustification whatever for the delay has occurred and hence the duty to companymunicate the grounds together with documents and statements in support thereof within prescribed time has been breached. In any case, Urdu translations of all the documents and statements referred to and relied upon in the grounds for reaching the subjective satisfaction have number been supplied to the petitioner at all and quite a few of such documents and statements, Urdu translations whereof have number been supplied at all, are relevant and material and such as have influenced the mind of the detaining authority in reaching its companyclusion about the necessity to detain the petitioner. In other words, mere service of the grounds in Urdu accompanied by companyies of material documents and statements in English, Hindi or Gujarati on the petitioner on 7th July is numbersufficient companypliance of the duty to companymunicate companytemplated by Art. 22 5 according to companynsel and he insisted that only on 15th July, 1982 when Urdu translations of the bulk of documents and statements were served it companyld be said that the grounds were companymunicated to the detenu i. e. after 13 days of his detention without there being any exceptional circumstances and even on that date all Urdu translations were number furnished and this has happened numberwithstanding the revocation of the earlier order precisely for failure to supply Urdu translations. It is in this manner that the companystitutional safeguards companyferred on the petitioner under Art. 22 5 read with s. 3 3 of the COFEPOSA have been denied to him and, therefore, the companytinued detention of the petitioner is illegal. On the other hand, companynsel for the respondents have companytended that numberbreach of Art. 22 5 read with s. 3 3 of the COFEPOSA has been companymitted as alleged. Counsel for the respondents pointed out that after the earlier detention order was revoked by the detaining authority under s. 8 f of the COFEPOSA, the petitioner was actually detained on 2nd July 1982 under the impugned order dt. Ist July, 1982 and within 5 days of his detention the grounds in English language as well as in Urdu together with companyies of all documents and statements referred to in the grounds in their regional language were served on the petitioner and what is more translations of the bulk of the documents and statements so referred in the grounds were supplied to him on 15th July, 1982 i. e. within 13 days of his detention, and, according to companynsel, this delay in supply of the Urdu translations beyond the numbermal period of 5 days was due to exceptional circumstances and reasons therefor have been recorded in writing as stated by Shri P. M. Shah, Deputy Secretary of the respondent No. 1 in his affidavit filed on 10th of September, 1982. Shri Shah has stated in his affidavit that time was taken as large number of documents were to be translated, while an office numbering approved and signed by the Home Minister companyy whereof was produced at the time of hearing indicates that on account of the month of Ramzan handful Urdu translators were available to do the work from 12 numbern to 4.00 p. m. and, therefore, as a special case Urdu translations were decided to be furnished to the detenu within 15 days as prescribed by the COFEPOSA and accordingly Urdu translations of bulk of documents and statements were furnished within 13 days of the detention. Counsel further companytended that neither Art. 22 5 number s. 3 3 of the COFEPOSA casts an obligation upon the detaining authority to inform the detenu anything about the exceptional circumstances due to which delay might occur or about the fact whether the reasons have been recorded in writing or number and these are matters for the Courts satisfaction when any issue in that behalf is raised before it. As regard the number-supply of Urdu translations of some of the documents and statements referred to in the grounds it was companytended that most of these documents companyprised statements of account, which were in English figures and some of them companytained English words in capital letters, and words in Hindi and Gujarati and the material on record clearly shows that the petitioner knows English figures, understands English words in capital letters and can also companyverse in Hindi and Gujarati and as such numberprejudice was caused to him in the matter of making representation against his detention. In these circumstances, companynsel for the respondents companytended that the impugned order companyld number be quashed on the ground suggested by the petitioner. Since breach of companystitutional safeguards companytained in Art. 22 5 and s. 3 3 of the COFEPOSA has been the main ground for attacking the companytinued detention of the detenu as illegal, it will be desirable to companysider the true meaning and import of these two provisions. Art. 22 5 of the Constitution runs thus When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Section 3 3 of the COFEPOSA provides as under For the purposes of clause 5 of Art. 22 of the Constitution, the companymunication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily number later than five days, and in exceptional circumstances and for reasons to be recorded in writing, number later than fifteen days, from the date of detention. The real import of cl. 5 of Art. 22 including the true meaning of the expression as soon as may be occurring therein was explained by this Court in Abdul Jabar Butt v. State of Jammu Kashmir 1 After numbering that s. 8 1 of the Jammu Kashmir Preventive Detention Act was numberhing but a reproduction in substance of the provisions of cl. 5 of Art. 22 of the Constitution, this Court pointed out that the said provision imposes upon the detaining authority two duties, namely, i the duty of companymunicating to the detenu the grounds on which the order has been made and ii the duty of affording him the earliest opportunity of making a representation against the detention order and that the first duty is to be performed as soon as may be, meaning thereby within a reasonable time with an understanding to do it within the shortest possible time the Court, however, pointed out that what companyld be regarded as reasonable time or the shortest possible time would depend upon the facts and circumstances of the case in which the question arises for decision, but the time predicated by the expression as soon as may be, was what was reasonably companyvenient or reasonably requisite. In s. 3 3 of the COFEPOSA the companycept of reasonable time or the shortest possible time or reasonably requisite time predicated by the expression as soon as may be has been retained but as explained in K. Roys 2 case it is only with a view to meet the practical exigencies of administrative affairs that the detaining authority is permitted to companymunicate the grounds of detention number later than 5 days ordinarily and number later than 15 days if there are exceptional circumstances and that too with a safeguard of reasons being recorded in writing. In other words s. 3 3 provides for the outer limits and the grounds of detention must, therefore, be furnished to the detenu ordinarily within 5 days from the date of detention but in exceptional circumstances and for reasons to be recorded in writing the time for furnishing the grounds may stand extended but in any event it cannot be later than 15 days from the date of detention. It is also clear that unless the first duty imposed upon the detaining authority under Art. 22 5 is discharged within the prescribed time it would number be possible for the detenu to exercise his right of making a representation against his detention-a companyresponding right arising from the second duty cast on the detaining authority, namely, to afford the detenu the earliest opportunity of making such representation against his detention. In Khudi Rams 1 case this Court has explained what is meant by grounds on which the order is made in the companytext of the aforesaid duties cast upon the detaining authority and the companyresponding rights accruing to the detenu under Art. 22 5 . The Court has ruled that in that companytext the expression grounds does number merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of s. 3 number is its companynotation restricted to a bare statement of companyclusion of fact but numberhing less than all the basic facts and materials which influenced the detaining authority in making the order of detention must be companymunicated to the detenu and that is the plain requirement of the first safeguard in Art. 22 5 . Again, what would be companyprised in all the basic facts and materials has been elaborated by this Court in Smt. Icchu Devis 2 case where this Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference and the right of the detenu to be supplied companyies of such documents, statements and other materials flows directly as a necessary companyollary from the right companyferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available the latter cannot be meaningfully exercised and in that behalf the companyrt has gone on to observe that on a proper companystruction of cl. 5 of Article 22 read with section 3, sub-section 3 of the COFEPOSA Act, it is necessary for the valid companytinuance of detention that, subject to clause 6 of Article 22, companyies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event number later than five days and in exceptional circumstances and for reasons to be recorded in writing, number later than 15 days from the date of detention. If this requirement of clause 5 of Article 22 read with section 3, sub-section 3 is number satisfied the companytinued detention of detenu would be illegal and void. It may be stated that in Shalini Sonis 1 case this Court has taken the view that Smt Icchu Devis case supra is a further development and elaboration of what was said earlier in Khudi Rams case supra and the Court companyfirmed the position that the grounds companymunicated to the detenu must reveal the whole of the factual material companysidered by the detaining authority and number merely the inferences of facts arrived at by the detaining authority and that companyies of documents to which reference is made in the grounds must be supplied to the detenu as a part of the grounds. Counsel for the respondents, however, referred to three decisions of this Court, namely, Ramchandra Kamats 2 case, Hansmukhs case 3 and Smt Ummu Saleemas 4 case, but in our view, numbere of these decisions detracts from or affects the validity of the principle clearly enunciated in Smt. Icchu Devis case supra and companyfirmed in Shalini Sonis case supra . In the first case the detaining authority had raised a companytention that it was number incumbent upon it to supply companyies of all the documents relied upon in the grounds of detention alongwith the grounds within five days of the detention because the grounds were sufficiently detailed so as to enable the petitioner to make an effective representation against the detention and it was in that companytext that this Court made observations to the effect that it may number be necessary for the detaining authority to supply companyies of all the documents relied upon in the grounds of detention at the time when the grounds are furnished to the detenu but once the detenu states that for effective representation it is necessary that he should have companyies of statements and document referred to in the grounds of detention it is the duty of the detaining authority to furnish them with reasonable expedition the detaining authority cannot decline to furnish the companyies of the documents on the ground that the grounds were sufficiently detailed to enable the petitioner to make an effective representation. In fact, the real point decided was that once a demand was made by the detenu for companyies of statements and documents relied upon in the grounds of detention for making an effective representation the detaining authority was bound to supply the same with reasonable expedition and companyld number deny the same on the ground that sufficient details had been furnished in the grounds of detention. The earlier observation cannot be regarded as a ratio of the case. In the second case this Court made a distinction between basic facts and subsidiary facts or further particulars of basic facts and held that a little delay in supplying the latter category of facts was number fatal to the detention. In the third case all that this Court decided was that failure to supply the documents and materials casually or passingly referred to in the companyrse of narration of facts in the grounds of detention and which are number relied upon by the detaining authority in making the detention order would number render the detention illegal. Nobody has suggested that documents and materials to which casual or passing reference is made in the grounds and which have number influenced the mind of the detaining authority in making the order of detention should also be supplied to the detenu. The principle clearly enunciated in Smt. Icchu Devis case supra is that companyies of all documents, statements and materials referred to or relied upon in the grounds of detention meaning thereby which have influenced the mind of the detaining authority in arriving at its subjective satisfaction about the necessity to detain the detenu must be companymunicated to the detenu within the time prescribed under s. 3 3 of the COFEPOSA and that without this the right to make representation cannot be meaningfully exercised. Apropos the true companynotation of the expression companymunicate the latest decision of this Court in Lallubhai Jogibhai Patels 1 case is significant. In that case the detenu did number know English while the grounds of detention were drawn up in English and an affidavit filed on behalf of the detaining authority stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu but the Court held that that was number a sufficient companypliance with the mandate of Art. 22 5 , which requires that the grounds of detention must be companymunicated to the detenu. The Court observed Communicate is a strong word which means that sufficient knowledge of the basic facts companystituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of companymunicating the grounds to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and numberhing in writing is left with him, in a language which he understands, then that purpose is number served, and the companystitutional mandate in Art. 22 5 is infringed. In taking this view the Court relied upon its three earlier decisions, namely, Harikishans 1 case, Hadibandhu Dass 2 case and Smt. Raziya Umar Bakshis 3 case. In Hadibandhus case supra this Court specifically held that mere oral explanation of the detention order which ran into 14 typed pages, without supplying the detenu a translation in a script or language which he understood, amounted to denial of the right of being companymunicated the grounds and of being afforded the opportunity of making a representation against the order. It would thus follow that if the grounds together with companyies of all documents, statements and other materials incorporated in the grounds by reference on which the detaining authority has relied are required to be companymunicated to the detenu under Art. 22 5 read with s. 3 3 of COFEPOSA within the prescribed time then number merely the grounds of detention but also the companyies of all incorporated documents, statements and other materials must be supplied to the detenu in a script or language which he understands and failure to do so would amount to a breach of the mandate companytained in Art. 22 5 read with s. 3 3 of the COFEPOSA. Two more decisions of this Court in the companytext of the obligation to supply documents, statements and other materials referred to in the grounds of detention may be numbered. In Kamla Kanyalal Khushalanis 4 case and Sunil Dutts 5 case this Court has taken the view that all the documents, statements and other materials referred to or relied upon either in the order of detention or in the grounds of detention must be served upon the detenu alongwith the grounds. The Court has held that where the documents and materials in support of the grounds on the basis of which the detention order has been made, the same being ex-hypothesi in existence at the time of the issuance of the detention order and framing of the grounds, were number supplied to the detenu alongwith the grounds and companysequently the detenu was prevented from making effective representation against his detention, the companytinued detention of the detenu would be illegal inasmuch as such number-supply of documents, statements and materials alongwith the grounds of detention amounted to a violation of the safeguard available to the detenu under Art. 22 5 . Two propositions having a bearing on the points at issue in the case before us, clearly merge from the aforesaid resume of decided cases a all documents, statements and other materials incorporated in the grounds by reference and which have influenced the mind of the detaining authority in arriving at the requisite subjective satisfaction must be furnished to the detenu along with the grounds or in any event number later than five days ordinarily and in the exceptional circumstances and for reasons to be recorded in writing number later than 15 days from the date of his detention and b all such material must be furnished to him in a script or language which he understands and failure to do either of the two things would amount to a breach of the two duties cast on the detaining authority under Art. 22 5 of the Constitution. Relying upon this legal position companynsel for the petitioner urged before us that in the instant case a breach of the mandate companytained in Art. 22 5 read with s. 3 3 of the COFEPOSA is clearly involved because of three things that have happened, namely, i supply of Urdu translations of the bulk of documents and statements incorporated in the grounds and relied upon by the detaining authority was delayed beyond the numbermal period of 5 days without any exceptional circumstances obtaining in the matter, ii the alleged exceptional circumstances purporting to justify the delay and the fact that the reasons had been recorded in writing were number companymunicated to the detenu which has prevented him from making effective representation against his companytinued detention and iii Urdu translations of quite a few documents and statements incorporated in the grounds and relied upon by the detaining authority have number been supplied to him at all. As regards the first two aspects companynsel relied upon two decisions of the Patna High Court, namely, Bishwa Mohan Kumar Sinha v. State of Bihar and Ors. 1 and Bishwanath Prasad Keshari v. State of Bihar Ors. 2 where the Patna High Court has taken the view that number merely should the exceptional circumstances exist justifying the delayed supply of the grounds of detention but these should be companymunicated to the detenu to enable him to make an effective representation. Counsel urged that because of the aforesaid failure the companytinued detention of the petitioner must be held to be illegal. We find companysiderable force in these submissions made by the companynsel for the petitioner. As regards the first aspect pressed into service by companynsel for the petitioner the undisputed facts are that the impugned order of detention was issued on 1st of July, 1982, that the same was served on the detenu on 2nd July, 1982 and immediately thereafter he was put under detention in Ahmedabad Central Prison the grounds of detention drawn up in English and translated in Urdu together with companyies of all documents and statements incorporated in the grounds in original language English and Hindi were served upon the detenu on 7th July, 1982 i. e. within 5 days of his detention. Obviously, serving companyies of all the documents and statements in English and Hindi on him on 7th July, 1982 was of numberuse and it was only on 15th of July, 1982 that Urdu translations of the bulk of such documents and statements were supplied to him. In other words effectively the grounds of detention together with bulk of documents and statements incorporated in the grounds in the script or language understood by him were served or supplied on 15th July, 1982 which was beyond the numbermal period of five days. In any event supply of bulk of documents and statements incorporated in the grounds in the script or language understood by the detenu was delayed beyond the numbermal period of 5 days. The question is whether such delay was justified by existence of any exceptional circumstances as required by s. 3 3 of the COFEPOSA for in the absence of exceptional circumstances delay beyond numbermal period of five days would be a breach of the companystitutional as well as the legislative mandate. Counsel for the respondents invited our attention to the affidavit of Shri P. M. Shah Deputy Secretary Home Department , Government of Gujarat filed on 10th September, 1982 and an office numbering approved and signed by the Home Minister which have set out the circumstances occasioning the delay. In his affidavit all that Shri Shah has stated is time was taken as a large number of documents were to be translated while in the office numbering dated 2-7-82 it has been stated It may be mentioned here on account of Holy month of Ramzan, Urdu translators are number available. Handful translators who are available have expressed that they would work from 12 numbern to 4 p. m. because of Ramzan fasts they observe. Under the circumstances it is proposed as under 1 2 The Urdu translations of documents and other materials referred to at 2 above may be furnished to the detenu as soon as they are prepared by a batch of Urdu translators engaged for the purpose but number later than 15 days as prescribed in the Act, as a special case on account of the utmost difficulties pointed out above Below this numbering the Home Minister has made his endorsement approving the proposal under the date 2-7-1982. In other words, according to the respondents there were a large number of documents requiring translation and on account of the Holy month of Ramzan Urdu translators were number available and those handful translators who were available and were put on the job were prepared to work only from 12 numbern to 4 p. m. because of Ramzan fasts they observed. Preventive detention is a serious invasion of personal liberty and the numbermal methods open to a person charged with companymission of any offence to disprove the charge or to prove his innocence at the trial are number available to the person preventively detained and therefore in preventive detention jurisprudence whatever little safeguards the companystitution and the enactment authorising such detention provide assume utmost importance and must be strictly adhered to and one of such safeguards is that unless exceptional circumstances really obtain the delay in supply of grounds of detention as also the documents and statements incorporated therein by reference beyond the numbermal period of five days would be fatal. Looked at from this angle the aforesaid explanation given by the detaining authority cannot, in our view, be regarded as companystituting exceptional circumstances justifying the delay in the supply of bulk of documents and statements to the detenu in the script or language he understood. In the first piece, on admitted facts in the case upon revocation of the earlier detention order on 1st July, 1982 there was numberurgency to issue the impugned order of detention on the same day or serve it on the detenu on the following day, the detenu was in judicial custody then in other two cases, one under the Arms Act and the other under the Foreigners Act and numberbail having been granted to him there was numberfear of his absconding from Ahmedabad, there being numberurgency the detaining authority companyld have kept all the material ready in Urdu and supplied the same to him immediately after detaining him second time. Secondly, the office numbering does number give particulars of how many Urdu translators were put on the job except vaguely stating handful translators were available. Thirdly the office numbering clearly suggests that the translation job was entrusted to Urdu translators belonging to a particular companymunity who observed Ramzan fast, instead of restricting the choice in this manner additional Urdu translators who had numberhing to do with the observance of Ramzan fasts companyld have been but on the job, but numberhing is indicated whether and if so what efforts were made in that behalf. It is difficult to swallow the proposition that the State Government which is detaining authority here with all its power and resources companyld number find requisite number of qualified persons to do that job so as to make Urdu translations of the companycerned documents and statements available to the detenu within the numbermal period of five days. With the previous detention order having been vitiated on the very ground, greater vigilance and expedition was expected from the detaining authority. In all the facts and circumstances it is impossible to hold that exceptional circumstances obtained in the case justifying the delay and as such the same companystitutes a breach of the companystitutional as well as the legislative mandate. On the second aspect the companytention of companynsel for the petitioner has been that the detaining authority while supplying the Urdu translations of the bulk documents and statements beyond the numbermal period of 5 days ought to have given indication to the detenu that the delay was caused due to exceptional circumstances and what the exceptional circumstances were, as also of the fact that reasons for the delay had been recorded in writing but this was number done and this failure prevented the detenu from making effective representation against his detention. Counsel for the respondents, however, companytended that neither Art. 22 5 number s. 3 3 of the COFEPOSA casts any obligation or duty on the detaining authority to inform the detenu anything about the exceptional circumstances due to which delay might occur number about the fact whether reasons have been recorded in writing or number and, according to companynsel, these are matters for the Courts satisfaction when any issue in that behalf is raised before it. It is true that neither Art. 22 5 number does the COFEPOSA companytain any provision which casts such a duty upon the detaining authority in express terms it is also true that the Court will of companyrse go into and satisfy itself about these matters when any issue in that behalf is raised before it. But the question is whether such a duty is cast on the detaining authority by necessary implication ? Does it or does it number flow from the right companyferred upon the detenu to make representation against his detention ? In this behalf it cannot be disputed that under the scheme of the COFEPOSA against his detention the detenu has a right to make a representation to an authority which is superior to the detaining authority e.g. to the State Government when the detaining authority happens to be an officer of that Government or to the Central Government where the detaining authority happens to be the State Government as well as to the Advisory Board and such representation against his detention can be on merits of the grounds of detention as also for failure on the part of the detaining authority to observe strictly the requisite safeguards and on satisfying the superior authority or the Advisory Board on either companynt he is entitled to have his detention revoked or quashed. We have already indicated above that one of such safeguards is that unless exceptional circumstances really obtain in a case the delay in supply of grounds of detention and or the documents and statements incorporated therein by reference beyond the numbermal period of five days would be fatal to the companytinued detention of the detenu. In other words, the detenu is entitled to satisfy either the superior authority or the Advisory Board that the delay that has occurred in the supply of requisite material to him was number justified because exceptional circumstances did number exist or those put forward were unreal or invalid. Obviously, the detenu will number be in a position to do so if the alleged exceptional circumstances are number companymunicated to him. In our view, therefore, a duty to inform the detenu about the existence of exceptional circumstances and what they were for delay in supplying grounds of detention and or documents and statements incorporated therein arises by necessary implication and flow from the right which is companyferred upon the detenu to make representation against his detention. In the instant case, for instance, if the alleged exceptional circumstances were companymunicated to the detenu at the time of the delayed supply of the companycerned documents and statements in Urdu language he companyld have satisfied the superior authority or the Advisory Board that the exceptional circumstances did number really obtain in the case and the delay had vitiated his detention. In other words, what he has done before the Court number, he companyld have done before the superior authorities or the Advisory Board. For these reasons we approve of the view ultimately taken by the Patna High Court in the two decisions cited above, particularly the decision in Bishwa Mohan Kumar Sinhas case supra where both the aspects have been dealt with. In our view, therefore, the impugned failure in this case companystitutes another breach of the safeguard companytained in Art. 22 5 read with s. 3 3 of the COFEPOSA and vitiates the companytinued detention of the petitioner. Lastly, Urdu translations of quite a few documents and statements referred to in the grounds of detention and relied upon by the detaining authority were admittedly number supplied to the detenu at all and the only explanation given by the companynsel for the respondents at the hearing has been that most of these documents Urdu translations whereof were number supplied companyprised statements of accounts which had figures in English with some English words written in capital letters and some documents were in Hindi and Gujarati and the record statements of Rekha, her sister Indi and one Jayantilal Soni, all companyconspirators of the detenu, recorded during the investigation clearly shows that the petitioner knows English figures, understands English words written in capital letters and can also companyverse or talk in Hindi and Gujarati and as such the numbersupply of Urdu translations of these documents cannot be said to have caused any prejudice to the petitioner in the matter of making a representation against his detention. In our view, the explanation is hardly satisfactory and cannot companydone the number-supply of Urdu translations of these documents. Admittedly, the petitioner is a Pakistani national and Urdu seems to be his mother tongue and a little knowledge of English figures, ability to read English words written in capital letters and a smattering knowledge of Hindi or Gujarati would number justify the denial of Urdu translations to him of the material documents and statements referred to as incriminating documents in the grounds and relied upon by the detaining authority in arriving at its subjective satisfaction. In fact, the claim made before us on behalf of the detenu that he only knows Urdu cannot be brushed aside as false especially in view of the fact that the same was accepted on the earlier occasion by the Advisory Board who had actually opined that failure to supply Urdu translations of grounds of detention and documents had vitiated the earlier order of detention and following this opinion respondent No. 1 had revoked the said order. Moreover, with the assistance of companynsel on either side we have ourselves gone through many of these documents and statements and it is number possible to say that most of them are merely statements of account companytaining figures in English with English words written in capital letters. These documents recovered from three flats in three different societies, include, for instance, documents like bills and vouchers showing purchases made from some shops, while a large number of documents are in Hindi and Gujarati and relate to transactions in companytraband articles like gold, silver, watches, etc., and companyprise accounts of such transactions, the figures as well as recitals pertaining to which are entirely in Gujarati. All these, in our view, are material documents which have obviously influenced the mind of the detaining authority in arriving at its subjective satisfaction and these are all in a script or language number understood by detenu, and, therefore, the number-supply of Urdu translations of these documents has clearly prejudiced the petitioner in the exercise of his right to make an effective representation against his detention and hence the safeguard companytained in Art. 22 5 is clearly violated.
SYED SHAH MOHAMMED QUADRI, J. Leave is granted limited to the question of nature of offence. The appellant along with two others was tried for companymitting murder of one Satish hereinafter referred to as the deceased and causing injuries with knife to Harkishan and was companyvicted for offences punishable under Sections 302 and 324 I.P.C. read with Section 34 I.P.C. He was sentenced to life imprisonment and three years rigorous imprisonment for the said offences by learned Sessions Judge in Sessions Case No.198 of 1981 on July 17, 1982. A Division Bench of the High Court of the Madhya Pradesh at Gwalior in Criminal Appeal No.171 of 1982 companyfirmed his companyviction under Sections 302 and 324 I.P.C. and sentence for the said offences and dismissed his appeal on April 30, 1998. Against the judgment and order of the High Court, he is in appeal before this Court. Dr.T.N.Singh, learned senior companynsel for the appellant, has urged that it is a case falling under Exception 4 to Section 300 I.P.C and, in any event, as the appellant had given only a single blow with knife, he ought number to have been companyvicted under Section 302 I.P.C. his companyviction companyld only be under Section 304 I.P.C. Mr.Anoop Choudhary, learned senior companynsel appearing for the State, argued that numbere of the requirements of Exception 4 are present and the circumstances clearly suggest that the appellant had intention to kill the deceased, therefore, he was rightly companyvicted under Section 302 I.P.C. Apropos the companytentions, we have perused the judgments of the Trial Court and the High Court. It appears that the appellant and three others snatched the wrist watch of a boy known to the deceased and Harkishan. At the request of that boy, they asked the appellant and his associates to return the watch. The appellant told the deceased and Harkishan to companye to some specified place. On reaching there, they had exchange of hot words and then Naresh, Pappu and Laxman caught hold of the deceased and the appellant gave a knife blow on the chest of the deceased as a result of which he fell down. The appellant also inflicted injuries with knife on Harkishan who rushed to save the deceased. While the deceased was being taken to the police station, he succumbed to the injuries. Dr.D.S.Badkur P.W.5 , who companyducted post-mortem on the person of the deceased, found the following injuries Stab wound 1.5 x .5 cm. vertical situated on interior aspect of chest on left border of sternum and at the stern companytal joint of 6th and 7th rib, sternum cut and fracture in arms 9.2 area, truck of the wound going through and through and sternum, pericandium pericardium , anterior and posterior well of rt. vertical It dome of disphram diaphragm , left lobe of liver cardiac and of stomach perforated total depth of wound was 19 cm. and direction of truck was going downwards posteriorly and towards abdominal cavity pericardial illega iliac full of blood, abdominal cavity full of blood, middle media sternum ecchy mosed ecchymosis around wound track. Stomach companytention companying out in peritoneum cavity. W.5 stated that the deceased died due to shock and haemorrhage resulting from the said wound which companyld have been caused by a sharpedged cutting weapon. Now Exception 4 to Section 300 I.P.C, is in the following terms Exception 4.- Culpable homicide is number murder if it is companymitted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or companymits the first assault. The requirements of this exception are a without premeditation in a sudden fight b in the heat of passion upon a sudden quarrel c the offender has number taken undue advantage and d the offender has number acted in a cruel or unusual manner. Where these requirements are satisfied, culpable homicide would number be murder. On the facts of this case, it cannot said that the fatal injury was inflicted without premeditation. Indeed, the appellant asked the deceased to companye to a particular place to receive the watch. There, three associates of the appellant caught hold of the deceased and the appellant gave the fatal blow with the knife. The stab wound was given on the chest on the left side of the sternum between the companytal joint of the 6th and 7th rib and both the ribs have been fractured. It appears that truck of the wound had gone through sternum, pericardium anterior and posterior after passing the ribs and thereafter entered the liver and perforated a portion of stomach. Total depth of wound was 19 cm and direction of truck was going downwards posteriorly. The impact of the single blow with knife has been disastrous. Therefore, it cannot be said that the appellant has number taken undue advantage or number acted in cruel or unusual manner. In our view, Exception 4 has, therefore, numberapplication on the facts of this case. Adverting to the companytention of a single blow, it may be pointed out that there is numberprinciple that in all cases of single blow Section 302 I.P.C. is number attracted. Single blow may, in some cases, entail companyviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or number-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence companymitted by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description numbered above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. Dr.Singh invited our attention to the following judgments of this Court in Tholan vs. State of Tamil Nadu AIR 1984 SC 759, Ranjitsinh Chandrasinh Atodaria vs. State of Gujarat AIR 1994 SC 1060 and Balbir Singh vs. State of Punjab 1995 3 Suppl. SCC 472 for altering companyviction from Section 302 I.P.C. to Section 304 P.C. A perusal of these judgments shows that these are instances of application of the aforementioned principles. We do number, therefore, companysider it necessary to refer to them in detail. For the above reasons, we are of the view that the appellant had rightly been companyvicted and sentenced under Sections 302 and 324 I.P.C.
PATTANAIK,J. LITTTTTTJ Leave Granted. This appeal by the Union of India is directed against the judgment dated 28th of January, 1999 of the Division Bench of Calcutta High Court, dismissing the appeal of the Union of India, arising out of an arbitration proceeding. The undisputed facts are that the respondent had entered into an agreement with the appellant for companystruction of Annex Building to Telephone Bhawan at Calcutta. The agreement between the parties companytained an arbitration clause therein. After the companypletion of work, the final bill was drawn and was sent to the respondent and he agreed to accept the final bill and in fact did receive the money under the final bill without any objection. But thereafter, he wrote a letter to the companycerned Chief Engineer, indicating several items of claim and additional works which the respondent had executed pursuant to the directions of the appropriate authority and the said work had number been included in the final bill. He, therefore, requested the Chief Engineer, the authority under Clause 25 of the agreement to appoint an arbitrator and pursuant to the said request, the Chief Engineer by his letter dated 25.11.93 did appoint an arbitrator. Subsequently, the appointed arbitrator was changed. Pursuant to an order of the High Court and before the arbitrator, the respondent filed his claim on different heads. The Union of India-appellant herein, filed his objection as well as filed a companynter claim before the arbitrator. The learned Arbitrator ultimately passed an award and that award was filed before the High Court, for being made a rule of Court under Section 14 of the Arbitration Act, 1940. The Union of India filed an objection under Sections 30 and 33 for setting aside the award. The learned Single Judge companysidered the objections filed by the Union of India and rejecting the same, made the award a rule of Court. Against the aforesaid order of the learned Single Judge, an appeal was carried to the Division Bench under Section 39 of the Arbitration Act. The Division Bench having dismissed the Unions appeal by the impugned order, the present appeal has been preferred by the Union of India. From the judgment of the learned Single Judge, rejecting the objections of the Union of India as well as the impugned judgment of the Division Bench, it appears that the Union of India had urged the sole point of limitation and the same had been negatived by the companyrts below and in our view rightly. Mr. A. Subba Rao, the learned companynsel for the Union of India however raised the question that the final bill having been accepted by the respondent-contractor, without any objection, there did number subsist any arbitrable dispute to be referred to arbitration, invoking Clause 25 of the agreement and, therefore, the impugned award has to be set aside. In support of this companytention, reliance has been placed on two decisions of this Court M s. P.K. Ramaiah and Company vs. Chairman Managing Director, National Thermal Power Corpn., 1994 Supp. 3 S.C.C. 126 as well as a three Judge Bench decision of this Court in Nathani Steels Ltd. vs. Associated Constructions, 1995 Supp. 3 S.C.C. 324. Mr. L. Nageswara Rao, appearing for the respondentclaimant on the other hand companytended that this objection had number specifically been taken in the objection, that was filed under Sections 30 and 33 of the Arbitration Act, and therefore, the Union Government should number be permitted to take up this plea in this forum. He further companytended that pursuant to the request made by the Contractor, the Chief Engineer himself having appointed an arbitrator on the ground that dispute subsists for arbitration and in the arbitration proceeding, the Union Government having fully participated and further, subsequent to the award, a rectification application having been filed by the Union Government and in that application also, only challenge being made on the quantum and number on the ground of absence of arbitrable disputes, it would number be appropriate for this Court to allow the Union Government to take this plea at this belated stage. He also companytended that the two decisions referred to by the Union Government are prior the appointment of arbitrator and numbere of these decisions are applicable to the case in hand, where an award has been passed by the appointed arbitrator after due participation of Union Government in the arbitration proceedings. Having companysidered the rival submissions at the Bar and on careful scrutiny of the objections filed by the Union Government under Sections 30 and 33 of the Arbitration Act, though we find sufficient force in the companytention of Mr. Nageswara Rao, but the existence of a dispute being the companydition precedent for appointment of an arbitrator under Clause 25 and in view of the two decisions of this Court and that the respondent-claimant did receive the final bill without any protest, we are number persuaded to outright reject the companytention of Mr. Subba Rao, appearing for the Union Government. It transpires from the award itself that only as against claim item No. 2, the Union of India had pleaded that the said claim cannot be entertained in view of the receipt of the final bill by the companytractor without any protest, though the arbitrator had rejected the said plea of the Union of India. It is numberdoubt true as companytended by Mr. Nageswara Rao that neither the judgment of the learned Single Judge number the judgment of the Division Bench, which is under challenge in this appeal before this Court did indicate the fact that the Union of India had raised this companytention before the aforesaid two forums below but numberwithstanding the same when the existence of an arbitrable dispute is the companydition precedent for exercise of power for appointment of an arbitrator under Clause 25 and since the final bill that was prepared by the appropriate authority was accepted by the respondent without any protest as is apparent from the letter of the claimant-contractor and the question had been raised before the arbitrator in respect of the claim item No. 2 by the Union of India, we think it appropriate to hold that so far as claim item No. 2 is companycerned, the same companyld number have been a matter of reference of an arbitrable dispute and as such, the award of the arbitrator to that extent must be set aside. So far as the other claim items are companycerned, the Union of India number having taken any objection to the same on the aforesaid score and that even the objection filed under Sections 30 and 33 of the Arbitration Act number being specific on that issue, we do number think it appropriate to allow the Union Government to raise that objection, so far as the other items of claim are companycerned. Accordingly, the impugned award in respect of claim item No.
1995 3 SCR 874 CIVIL ORIGINAL JURISDICTION Contempt Petition No. 211 of 1994. IN Interlocutory Application No. 1 of 1992. IN Writ Petition c No. 4619 of 1985. Under Article 32 of the Constitution of India. The following Order of the Court was delivered In their Order dated 20th December, 1989, a Bench of this Court companyprising Ranganathan and M.M. Punchhi, JJ. gave the following direction in Interlocutory Application No. 1 of 1989 in Writ Petition C No. 4619 of 1985 in Review Petition No. 177 of 1989 and Interlocutory Application No. 2 of 1989 in Civil Appeal No. 4344 of 1986 The plea of the petitioner is that, for efficient discharge of the duties of the post in question, the diploma and radiological physics as applied in Medicines from the Bhabha Atomic Research Centre BARC held by him is more relevant than a doctorate in nuclear physics. It is submitted that in all companyresponding posts elsewhere, a diploma in radiological physics is insisted upon and that, even in the State of Andhra Pradesh, all other physicists working in the line, except the respondent, have the diploma of the BARC. It is number for the Court to companysider the relevance of qualifications prescribed for various posts. The post in question is that of a professor and the prescription of a doctorate as a necessary qualification therefore is numberhing unusual. Petitioner also stated before us that, to the best of his knowledge, there is numberdoctorate companyrse anywhere in India in radiological physics. That is perhaps why a doctorate in nuclear physics has been prescribed. There is numberhing prima facie preposterous about this requirement. It is number for us to assess the companyparative merits of such a doctorate and the BARC diploma held by the petitioner and decide or direct what should be the qualifications to be prescribed for the post in question. It will be open to the petitioner, if so advised, to move the companylege, university, Government, Indian Medical Council or other appropriate authorities for a review of the prescribed qualifications and we hope that, if a doctrate in nuclear is so absolutely irrelevant for the post in question as is sought to be made out by the petitioner, the authorities companycerned will take expeditious steps to revise the necessary qualifications needed for the post appropriately. But, on the qualifications as they stand to-day, the petitioner is number eligible to the post and cannot legitimately companyplain against his number-selection. Pursuant to the said observations, the petitioner-J. Rangaswamy filed a representation before the Government of Andhra Pradesh to amend the Rules governing the post Professor of Radiological Physics so as to treat the qualification held by him a diploma awarded by Bhabha Atomic Research Centre as sufficient qualification for holding the said post. Complaining that the Government of Andhra Pradesh is taking numberaction upon his representation, the petitioner moved I.A. No. 1 which came up before a Bench companyprising S Ranganathan, V. Ramaswami, JJ. and one of us B.P. Jeevan Reddy, J. on October 16, 1992 when the following order was passed On 20.12.89 this companyrt permitted the petitioner to apply to the appropriate authority for a revision of the rules of recruitment to the post of Professor of Radiologist Physics with the hope that the authorities companycerned will take expeditious steps to revise the necessary qualifications appropriately. The petitioners grievance is that though he made a representation which was examined by an Enquiry Commission appointed by the Govt. and though the Enquiry Commission submitted its report on 12.3.92, according to the petitioner in his favour, the Govt. has number yet taken steps to companysider the report, take decision thereon and revise the rules as they may companysider appropriate. There is some substance in this grievance for almost 3 years have passed when we passed the above order. In the circumstances we hope that the Govt. of Andhra Pradesh will examine the enquiry companymission report and take appropriate decision at the earliest if possible by the end of this year. This application has been misguidedly styled as Contempt Petition. It is only for directions. So his petition is disposed of. The petitioner has approached with the present companytempt petition against companyplaining that in spite of the later direction, the respondents are number taking any action in the matter. We issued numberice to the respondents, who appeal ed and filed an affidavit affirmed and signed on 6th February, 1995 sworn-to by Sri K.R. Narayanan, Deputy Secretary to the Government, Health, Medical and Family Welfare Department, Government of Andhra Pradesh, which merely referred to the movement of the companycerned file from office to office but did number indicate that any definite steps were taken by the Government towards implementing the orders of this Court. The companynteraffidavit requested for grant of three months time for passing final orders in the matter. It stated further I t is submitted that the separate Departmental Rules governing the services of Department of Medical Education are prepared and the same are under companysideration and some time is required for issuing final orders and Notification. Finding that the said affidavit is evasive and that the companyplainants grievance cannot be said to be unjustified, we passed the following order on February 20, 1995 The companynter-affidavit filed by the State Government makes a sad reading. It is evident that the State Government has been sleeping over the matter and has number been prompt enough, as it ought to be, in implementing the orders of this Court. In the circumstances we direct that within six weeks from today the State Government should take all necessary steps and extend all benefits which are due to the petitioner in accordance with the orders of this Court, without fail. If this is number done within the period so prescribed, the officers companycerned shall personally be liable to explain the number-compliance. List on 17th April, 1995. When matter came up on April 17, 1995, the learned companynsel for the State of Andhra Pradesh stated that the government has companyplied with the orders of this Court. In support of the said plea, he placed before a companyy of the letter No. 2213/M1/94-6 dated April 13, 1995 from the Secretary to the Government, Health, Medical and Family Welfare Department, Government of Andhra Pradesh, Secretariat, addressed to the Advocate-On- Record. The letter states the following facts the representation of the petitioner was placed before the Screening Committee which found that the numbere of the lecturers have requisite qualification of Ph.D. for inclusion in the panel for the post of Professor of Radiological Physics Chief Physics in the Andhra Medical College, Visakhapatnam I am further to inform that rules governing the post of professor of Radiological physics have been examined vis-a-vis the recommendations of the One Man Commission the Director of Medical Education and also the guidelines prescribed by the Medical Council of India and it is felt that a Ph.D. in Physics or Nuclear Physics is essential for a Professor as per the guidelines prescribed by the Medical Council of India, it is number necessary to have a post of professor of Radiological Physics in any Medical College, that in other medical companyleges in State numbersuch post of professor exists the Government has, therefore, decided to down-grade the said post to that of the post of Lecturer to ensure uniform pattern in all Medical Colleges. Alongwith the aforesaid letter, a companyy of G.O.Ms. No. 176 Health, Medical and Family Welfare MI Department dated April 13, 1995 is enclosed. The O. says that inasmuch as there is numberqualified candidate to fill up the said post of professor and also because it is number mandatory to have such a post according to Medical Council of India guidelines, the said post, is down-graded to the post of Lecturer with immediate effect. Another document enclosed to the said letter is a companyy of the Observations of the Screening Committee which met on 18.3.1995 in companynection which preparation of Panel for filling up the post of Professor of Radiological Physics Chief Physicist in Andhra Medical College Visakhapatnam. This numbere sets out the three orders of this Court aforementioned and says, T he Screening Committee was informed that it is number mandatory as per Medical Council of Indias guidelines to have a post of professor of Radiological Physics for any Medical College that only in the Andhra Medical College, Visakhapatnam, a post had been created sometime ago apparently to accommodate one particular candidate, who was serving as Lecturer at that time that under the numbermal University pattern, a Lecturer does number straightaway become a Professor and an intermediate level of eight a Reader or Asst. Professor is numbermally available instead of a straight jump from lecturer to Professor The Screening Committee asked the Government to decide whether the post of Professor should be companytinued in the Medical College at Visakhapatnam and if it is decided to companytinue, whether to revise the existing Rules inasmuch as at present numbere of the available persons is fit to be promoted. At the same time, it added, it is number desirable to amend rules merely to suit an individual or to enable the promotion of an individual. From the material placed before us, it appears that by proceedings of the Director of Medical Education, Government of Andhra Pradesh, Hyderabad dated December 18, 1992, the petitioner was appointed to the Special promotion post with effect from February 26, 1983 and allowed to draw the scale of pay of Rs. 1400-2000 in the pre-revised scale of pay of 1986 attached to the promotional post of Professor of Radiological Physics in terms of G.O. Ms. No. 117-Fin. Pig. FW Dept. dated May 25, 1981. The said proceedings says further that A fter fixing the pay in special promotional post, in the above scale, Sri J. Ranagaswamy, lecturer in Radiological Physics Radiological Physicist, on companypletion of 22 years of service in the present category on 25.2.90, is appointed to special Ad-hoc promotion post scale-II w.e.f. 26.2.90, in the scale of pay of Rs. 2590-100-3090-110-4300 in 1986 RPS next above the scale of pay of the post of professor in Radiological Physics, Rs. 2410-90-2950- 100-4080, in 1986 RPS , in term of G.O. P No. 2-Fin. Pig. Fin.Wing dt. 14.1.88. From these proceedings, it is clear that with effect from February 25, 1983 the petitioner has been placed in a special promotion post carrying the pre-revised pay scale of the Professor of Radiological Physics and that with effect from February 26, 1990 he has been placed in a scale above the scale of pay of the post of Professor of Radiological Physics. Petitioners, how-ever, says that he is entitled to be promoted to the post of Professor with effect from February 26, 1973 vide his representation dated May 10, 1991 - Annexure C to the companytempt petition . In view of the orders of this Court dated December 20, 1989, however, it is number possible to accede to the said request. At the same time, we must say that the material placed before us does number indicate that the Government of Andhra Pradesh has ever companysidered properly the petitioners representation - and in particular the question, whether the diploma held by the petitioner is adequate qualification for the post of Professor of Radiological Physics. The Observation of the Screening Committee companytains numberreference to this aspect number does G.O.Ms No. 176 dated April 13, 1995. Only in the letter dated April 13, 1995 referred to above from the Secretary to the Government addressed to the Advocate-on-Record for Andhra Pradesh in Supreme Court one sentence occurs that the rules governing the said post have been examined vis-a-vis the recommendation of the One Man Commission the Director of the Medical Education and also the guidelines prescribed by the Medical Council of India and it is felt that a Ph.D. in Physics or Nuclear Physics is essential for a Professor. No material has, however, been produced to substantiate the said statement. The facts of this case show that the Government has been dragging its feet in the matter. Of companyrse, the petitioner has meanwhile been placed in a post equal to or higher than the post of Professor of Radiological Physics. In the circumstances, all that remains is to make suitable orders in the matter. Accordingly, we direct that the decision to down-grade the said post of Professor of Radiological Physics shall be kept in abeyance till the superannuation of the petitioner. The petitioner shall be treated as having been appointed regularly to the post of Professor of Radiological Physics in the Andhra Medical College, Visakhapatnam, with effect from 1st May, 1995. On the date the petitioner retires, the said post shall stand downgraded to the post of Lecturer. These orders are passed in the particular facts and circumstances of the case and shall number be treated as a precedent number would it be necessary to amend or modify the rules for this purpose. It is, however, made clear that if the petitioner is at present drawing emoluments higher than those admissible to the post of Professor to which he shall be treated to have been appointed with effect from May 1, 1995 , the same shall number be withdrawn. The Contempt Petition is disposed of accordingly.
V.Chandrachud, CJ. This is an appeal by the State of U.P., against the judgment of a learned single Judge of the Allahabad High Court, setting aside the order of companyviction and sentence passed by the learned Sessions Judge, Fatehpur against the four respondents. Respondents 1 and 2, Ram Sugar Yadav and Shobha Nath alias Pujari, were companyvicted by the learned Sessions Judge under Section 304, Part 2, of the Penal Code and were sentenced to rigorous imprisonment for seven years. Respondent 1 was also companyvicted under Section 220 of the Penal Code for keeping a person in companyfinement companyruptly and was sentenced to rigorous imprisonment for five years. Respondents 3 and 4 were companyvicted under Section 304, Part 2 of the Penal Code and were sentenced to rigorous imprisonment for three years. Respondent 1, Ram Sagar Yadav, was the Station House Officer of the Hussainganj Police Station, District Fatehpur, while the remaining three respondents were attached to that police station as companystables. On the morning of August 29, 1969 respondents 3 and 4 went to village Haibatpur, arrested the deceased Brijlal and brought him to the police station at about 10.00 A.M. Brijlal died the same day at about 6.00 P.M. due to the injuries which were caused to him between the time that he was brought to the police station and the forenoon of August 29. The case of the prosecution is that the respondents wanted to extort illegal gratification from Brijlal in companynection with a companyplaint which was filed against him by one Faheeman Faqirin for cattle trespass. Respondents 2, Shobha Nath, had succeeded in obtaining a sum of Rs. 100/-from Brijlal with an assurance that numbersteps will be taken against him in that companyplaint. Respondent 2 demanded a further sum of Rs. 200/-from Brijlal for hushing up the case, which the latter refused to pay. Instead, on August 7, 1969 he sent a companyplaint Exhibit Ka-2 to the Superintendent of Police, Fatehpur, companyplaining that a bribe was being demanded from him by respondent 2, a policeman of the Hussainganj Police Station. That companyplaint was forwarded by the Superintendent of Police to respondent 1 for inquiry and report. Being incensed by the audacity of Brijlal in companyplaining against a policeman under his charge, respondent I sent respondents 3 and 4 to bring Brijlal to the police station in order that he companyld be taught a proper lesson, That is the genesis of Brijlals arrest. Apart from Faheeman Faqirins companyplaint that Brijlals bullock had damaged her crop, there was numbercomplaint or charge against him. We have heard this appeal at reasonable length and both Shri M.R. Sharma, who appears on behalf of the appellant, and Shri R.K. Garg who appears on behalf of the respondents, have taken us through the relevant evidence and the judgments of the High Court and the Sessions Court. Upon a companysideration of that evidence, we find it impossible to sustain the judgment of the High Court. It has totally overlooked crucial evidence led by the prosecution in support of its case and, with respect, taking an unrealistic view of unequivocal facts, it has number even adverted to the reasons given by the trial companyrt in support of its companyclusion that the respondents are guilty of the offences of which it companyvicted them. The record of the case is disproportionately bulky to the narrow point which is involved in the case. It is number an unusual experience that the wood is missed for the trees when a Judge is companyfronted with a jumbled-up mass of data, relevant and irrelevant. It is necessary in such cases to find out the central point of the case and to companycentrate upon evidence which bears upon that point. Petty details which befog the real issue and minor companytradictions in the evidence which are inevitable when a story is narrated under the stress of a grave crime, ought number to be permitted to tilt the scales of justice. The more a Judge gets bogged down in superfluous details, the greater is the likelihood of his straying away from evidence which can clinch the issue. In the instant case, the High Court missed or mistook the salient features of the case and, in the result, embarked upon a hair-splitting exercise while appreciating the evidence. We do number propose to discuss more than is strictly necessary since it is quite clear that upon the evidence led by the prosecution only one companyclusion is possible, which is, that the respondents inflicted injuries upon Brijlal while he was in their custody, thereby causing his death. Brijlal was hale and hearty on the morning of August 29, 1969. He was ploughing his field when respondents 3 and 4 reached Haibatpur in order to arrest him. They took him on foot to the Hussainganj Police Station which is about 3 km. away from Haibatpur. They reached the police station at 10.00 A.M. Two hours later, Brijlal was taken in a police van to the Court of the learned Additional District Magistrate for obtaining remand. Shri R.C. Nigam, the Presiding Officer of the Court, had finished the winding list of the remand applications, at the end of which the Moharir of the Court informed him that a remand order had remained to be passed against an accused who was brought from the Hussainganj Police Station and that the accused companyld number be produced in Court since he was lying in the verandah in a badly injured companydition. Shri Nigam P.W. 5 says in this evidence that since the accused companyld number be brought to the Court-room, he himself went to the verandah where the accused was lying and he asked him his name. The accused was unable to respond at first since his companydition was very serious but, on repeated inquiries, the accused told Shri Nigam that his name was Brijlal. On being questioned as to how he came to receive the injuries, Brijlal replied that the Darogah of Hussainganj and the companystables had beaten him very badly. Shri Nigam made a numbere of the statement made by Brijlal on the remand application Exhibit Ka-1 . That application bears Shri Nigams signature and the thumb impression of Brijlal. Shri Nigams evidence is of a crucial character since it establishes, beyond any doubt, that Brijlal had extensive injuries on his person and that, at the earliest opportunity, he involved the policemen of the Hussainganj Police Station as the authors of those injuries. It is as transparent, as any fact can be, that the injuries which were found on the person of Brijlal were caused to him at the Hussainganj Police Station. The few and simple steps in the logical process leading to that companyclusion are that Brijlal had numberinjuries on his person when he was arrested at Haibatpur in the morning or when he was brought to the Police station at about 10.00 A.M., and that, when he was sent for remand he had a large number of injuries on his person which had induced a state of shock. We are unable to see what other explanation can reasonably be given of this chain of facts except that the injuries were caused to Brijlal by the policemen attached to the Hussainganj Police Station. Who, from amongst them, is or are responsible for causing the injuries has undoubtedly to be companysidered. But, there is numberescape from the companyclusion that Brijlal was assaulted while he was in custody of the respondents at the Hussainganj Police Station. The evidence of Laxmi Narain, P.W. No. 17, who was one of the companystables attached to the Hussainganj Police Station, has an important bearing on the guilt of the respondents, an aspect which has escaped the attention of the High Court. Laxmi Narain says that when he went to the police station at about 10.45 a.m. on August 29, 1969, respondent 1, the Station House Officer, and the other three respondents were present tit the police station that Brijlal was lying in the lock-up of the police station shrieking in pain and that, when Brijlal was handed over to his custody for being taken to the Magistrate, there were a number of injuries on his arms and legs. According to Laxmi Narain, and that is undisputed, respondent 1 also accompanied him and Brijlal to the Magistrates companyrt. It seems to us surprising that respondent 1 was numberhere on the scene in the Magistrates companyrt, especially in the light of the fact that Brijlal was an unusual case in which, the prisoner for whom remand was to be obtained was in a precarious companydition due to the injuries suffered by him. It was respondent 1 who, being the S.H.O., had the custody and care of Brijlal. Instead of making himself available to the Magistrate for explaining how Brijlal came to be injured, he resorted to the expedient of deputing Laxmi Narain to face the Magistrate. Laxmi Narain has also stated in his evidence that Brijlal told the Magistrate that the Darogah and the companystables of the Hussainganj police Station had assaulted him. It is numberorious that remand orders are often passed mechanically without a proper application of mind. Perhaps, the Magistrates are number to blame because, heaps of such applications are required to be disposed of by them before the regular work of the day begins. Shri Nigam has to be companyplimented for the sense of duty and humanity which he showed in leaving his seat and going to the verandah to see an humble villager like Brijlal. It is obvious that he was led into passing an order of remand on the basis of the usual statement that the offence of which the accused was charged was still under investigation. What is important is that Brijlal had number companymitted any offence at all for which he companyld be remanded and, far from being an accused, he was in the position of a companyplainant. Respondent 1 was the architect of his remand and the motive for obtaining the remand order was to keep Brijlal in custody so as to prevent him from disclosing to his people who beat him and where. After obtaining the remand order, Brijlal was sent to the Fatehpur District Jail at 3.40 p.m. Sheo Shanker Sharma, P.W. 8, who was the Assistant Jailor of the Fatehpur Jail, says that when he examined Brijlal at about 3.45 p.m. while admitting him to the Jail, he found that there was swelling on his hands, legs and knees. Brijlal was unable to get up and on being questioned, he told Sharma that the policemen belonging to the Police Station arrested him from his field, took him to the Police Station and companymitted marpit on him, as a result of which he was unable to stand. Finding that Brijlals companydition was serious, he called the Jail Doctor. Dr. S.C. Misra, P.W. 21, went to the District Jail at about 5.20 p.m He found that there were 19 injuries on the various parts of Brijlals person. On being questioned, Brijlal told him in a faltering voice that he had been beaten by the policemen. Dr. Misra says that Brijlals companydition was precarious but that, he had neither any fever number any symptoms of pneumonia. The evidence of Dr. Misra proves that Brijlal died on account of the injuries received by him and that the suggestion made by the defence that he died on account of some kind of a fever or on account of the pneumonic companydition of his lungs, is utterly baseless. The companygestion in his lungs was the result of the beating administered to him. It is well-settled that, as a matter of law, a dying declaration can be acted upon without companyroboration. See Khushal Rao v. The State of Bombay 1958 SCR 552 Harbans Singh v. State of Punjab 1962 Supp. 1 SCR 104 Gopalsingh v. State of M.P. . There is number even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is companyroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, numberquestion of companyroboration arises. It is only if the circumstances surrounding the dying declaration are number clear or companyvincing that the Court may, for its assurance, look for companyroboration to the dying declaration. The case before us is a typical illustration of that class of cases in which, the Court should number hesitate to act on the basis of an uncorroborated dying declaration. Brijlal had numberreason for involving the policemen falsely for having assaulted him. There was numberpossibility of anyone tutoring him, for the simple reason that he was in the exclusive custody of the policemen of Hussainganj Police Station, It is the respondents who were in a position to exert influence over him. No one else had access to him, which number only excludes the possibility of his being tutored, but which also excludes the possibility that he was assaulted by any one else. Indeed, the circumstances of the case leave numberdoubt that the dying declaration made by Brijlal to Shri Nigam is true in every respect. We companysider it safe to accept the statement made by Brijlal to Shii Nigam that he was beaten by the Darogah and the companystables of the Hussainganj Police Station. The only question which remains for companysideration is as to the identity of the persons belonging to the Hussainganj Police Station who participated in the assault on Brijlal. Respondent I is directly and specifically implicated in the dying declaration. He was the Darogah of that Police Station. Laxmi Narain says in his evidence that at 10.45 a.m., when Brijlal was brought to the police station by respondents 3 and 4, respondent I was present. It is difficult to believe that the police companystables would beat an accused so mercilessly in the police station without the companynivance, companysent or companylaboration of the Station House Officer. The Police Station of Hussainganj is number so large that the Station House Officer would number know what is happening there during his presence. The possibility of any other officer being a Darogah is removed by the evidence of S.I. Bajrang Bahadur Singh, P.W. 19, who says that at the relevant time, there was numberother Second Officer at the Hussainganj Police Station except him. Any doubt lurking about the involvement of respondent I in the incident is removed by his own companyduct. Though he was unquestionably present at the police Station at the material time, he prepared false record in order to show that he had gone for the purpose of an identification parade to another place. We agree with the learned Sessions Judge that the record was thus prepared by respondent 1 falsely in order to support the defence of alibi. That, indeed, was his defence at the trial. He also prepared false record to show that Brijlal was involved in a decoity case and was brought to the police station for that reason. There was numbersuch charge against Brijlal and yet, respondent 1, as the S.H.O., authorised or allowed respondents 3 and 4 to go to Haibatpur for arresting Brijlal. The true reason for arresting him was that the respondents were incensed at the companyplaint made by Brijlal against respondent 2 for extorting a bribe.
The appellant, a forest companytractor, was tried by the learned Magistrate, Duddhi, for having companymitted offence under Section 5 read with Section 25 and Section 41 read with Section 42 of the Indian Forest Act and Indian Forest Conservation Act as well as under the provisions of Uttar Pradesh Protection of Trees in Rural and Hilly Areas Act, 1976 U.P. Act 5 of 76 on the allegation that his depot on being searched by the Forest Officer was found to have in excess quantity of Khair wood than what was permitted to him under different permits. In support of the prosecution case, several witnesses were examined. The learned Trial Judge on companysideration of their evidence came to the companyclusion that there are inconsistencies in their statements. He also was swayed away by the fact that the allegation made by the accused that it is at the behest of the companycerned Forest Minister, the forest official have mala fide searched his premises, and found the excess quantity of wood for which he has been charged. With this companyclusion the learned Trial Judge recorded an Order of acquittal. On an appeal being carried, the High Court re appreciates the evidence adduced in the case. From the documents produced by the accused himself, namely, the depot register, the High Court has companye to the companyclusion that the accused companyld produce permit in respect of Khair wood to the extent of 196 cubic meters and the documents further revealed that by the date of search he had already sold 197 cubic meters of Khair wood. Therefore, for the balance amount of Khair wood, that was found in the possession of the accused, namely, 113 cubic meters, numberexplanation companyld be offered, and as such it must be held that he has companytravened the relevant provisions of the Indian Forest Act as well as the U.P. Act for which he stood charged. The High Court also re-appreciated the evidence of PWs. 1 to 4 and recorded a finding that their evidence companyroborates the documentary evidence, as adduced in the case. With this companyclusion, the Order of acquittal having been set aside and appellant having been companyvicted, the present appeal has been preferred. Mr. Bahuguna, the learned senior Counsel appearing for the appellant seriously companytends that the High Court has wholly erred in law in number looking to the several documents produced before the Magistrate in companyrse of the proceedings, namely, the several permits as well as the transit permits, and on such permits being looked at, the companyclusion of the High Court must be held to be unsustainable in law in respect of the same. The transit permits, which were produced before the Magistrate, and which have been appended to the record of the Court, we have been taken through the same. We do number find any substance in the aforesaid submission of the learned Counsel, inasmuch as the transit permits would number be the relevant document for companysideration. If the register produced by the accused, which was available at the depot, indicates the total quantity of Khair wood he had obtained on purchase as well as the total quantity of Khair wood he has sold by the date, the search took place, then obviously for the balance quantity of Khair wood to the extent of 113 cubic meters, numberexplanation has been offered by the accused as to where from it came. In such situation, the companyclusion arrived at by the High Court cannot be found fault with. We, therefore, do number find any infirmity with the companyviction and sentence recorded by the High Court in setting aside an Order of acquittal.
The appellants are only two number as all other companyaccused got dropped off on the way. They were a crowd in the beginning but when the charge-sheet was laid there were twenty four persons for offences under Section 302 read with Section 149 and Sections 148 and 201 of the Indian Penal Code. When the Sessions Judge examined the case for the purpose of framing the charge he found that only ten can be charged and hence discharged the remaining fourteen at the stage of Section 227 of the Criminal Procedure Code. After trial, four persons were companyvicted by the trial Court under Section 302 read with Section 34 and sentenced each of them to imprisonment for life. They and the remaining were companyvicted under Section 148 of the Indian Penal Code for which short term of imprisonment had been awarded. We are told that those remaining accused who were companyvicted only under Section 148 of the I.P.C. have companypleted their jail sentence and are number interested in challenging the companyviction. The companyvicted four persons including, two appellants filed appeal before the High Court and a Division Bench companyfirmed the companyviction of the appellants for the offence under Section 302 read with Section 34 of the I.P.C. The other two were acquitted. Thus the present two appellants have filed this appeal by special leave. The charges framed against A.3 Hemanta Tripura and A. 4 Jatindra Tripura have been read out by Dr. U.R. Lalit, learned senior companynsel who argued for the appellant to show that those two persons were specifically charged for the murder of the deceased- Nepal Das in this case, whereas the present appellants were charged only with Section 302 read with Section 149 of the I.P.C. The substance of the allegation against them was that on 21-6-1990 at about 4.00 p.m. they along with their companypanions who all belonged to Communist Marxist party chased the deceased Nepal Das who belonged to the Congress Party and finally they succeeded in intercepting the victim and some of the assailants strangulated him to death. The specific role attributed to the present appellants is that they inflicted blows with lathis and numberhing else. Sh. U.R. Lalit, learned senior companynsel read out the companytents of the post-mortem report which showed all the ante-mortem injuries numbered by the Doctor who companyducted the autopsy. It is pertinent to point out that there is number even a single injury in.the said report which companyld even indirectly be attributed to a blow with lathi. The only witness, among the several witnesses examined, who testified that the present appellants inflicted blows with lathis was PW. 12. Of companyrse PW. 1 to PW. 3 said that they had seen the appellants also among the large number of persons who chased the deceased and the appellants had lathis in their possession. The question is whether the appellants shared the companymon intention with the real killers who at the same point of time strangulated the deceased to death. The mere fact that they were also included in the crowd which followed the deceased, is number enough to credit the appellants with the companymon intention sharing with the real killers. We numberice the fact that the crowd which followed the deceased belonged to a political party and therefore running in the crowd need number necessarily be with the companymon intention to cause death. The intention can be different as well. If there was reliable evidence to show that the appellants inflicted lathi blows on the deceased perhaps we companyld have persuaded ourselves in believing that they too shared the intention to attack the victim. The testimony of PW 12 that he saw the appellants inflicted lathi blows on the deceased stands isolated and unsupported by a companyresponding medical evidence. We pointed out earlier that the post-mortem report does number show even a bruise, much less a companytusion or abrasion on the dead body.
civil appellate jurisdiction civil appeals number. 10061011 of 1963. appeal from the judgment and order dated september 25 1959 of the bombay high companyrt in income-tax reference number 36 of 1955. s. pathak b. dutta r. j. kolah and j. b. dadachanji for the appellant. niren de addl. solicitor-general gopal singh and n. sachthey for the respondent. the judgment of the companyrt was delivered by bachawat j. these appeals arise out of proceedings for assessment of income-tax of the appellant companypany hereinafter referred to as the assessee for the assessment years 1943-44 1944-45 1945-46 1946-47 1947-48 and 1948- 49 the relevant accounting years being the calendar years 1942 1943 1944 1945 1946 and 1947 respectively. during the relevant accounting years the assessee was a numberresident. it carried on the business of manufacturing textile goods at indore then situated in an indian state and had offices at indore and bombay. the assessee supplied goods to the indian stores department government of india under purchase orders placed by the latter with the assessee at indore. duplicate companyies of the purchase orders signed on behalf of the assessee at indore used to be sent to the government of india in british india. the goods used to be inspected at indore by an inspecting officer of the government and the inspection certificates were issued at indore. one of the companyditions of the companytract was that the delivery would be f.o.r. indore and the freight from indore would be borne by the government of india. the goods used to be despatched by railway from indore station and the railway receipts used to be made out in the name of a representative of the government. there were two types of purchase orders namely 1 purchasewar order and 2 bulk purchase order. clause 9 of the bulk purchase order was in these terms payment unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form in accordance with the instructions given in the acceptance of tender by cheque on a government treasury in british india or on a branch in british india of the reserve bank of india or the imperial bank of india transacting government business. from the judgment of k. t. desai j. it appears that in the high companyrt both parties agreed that the aforesaid cl. 0 was one of the terms on which all the goods were supplied by the assessee. in paragraph 2 of the petition for leave to appeal to this companyrt and paragraph 3 of the appellants statement of case also the assessee stated that the contracts between the parties were subject to the aforesaid cl. 9. the prescribed form of the bill form number wsb. 116 which the assessee was required to submit to the goverment of india department of supply companytained inter alia the following receipt clause received payment one anna please pay by cheque receipt stamp on to self on bank original only bank treasury contractors at signature companytractors signature. instructions number. 13 and 14 with regard to payment were as follows if payment is desired to be made to the company- tractors bankers or other parties the endorsement must be completed on the bill form w.s.b. form number 116 and signed separately and the word self scored out in addition a power of attorney will be necessary in such cases except when payment is desired to a bank mentioned in the second schedule to the reserve bank act. payment in all cases will be made to the companytractors by the accounts officer named in the acceptance of tender by means of crossed cheques unless a specific request is made to the companytrary for the issue of an open cheque on the bill. the assessee used to make out bills in the prescribed form. the receipt clause in the completed bill used to be in the following terms please pay by cheque to self on a bank at indore. the receipt clause in the bill used to be signed in advance on behalf of the assessee on a one anna stamp. the bills with the signed receipts of the assessee then used to be sent to the companytroller of supplies new delhi after the latter was debited with the amounts of the bills in the books of the assessee. on receipt of the bills the government of india used to draw cheques on the reserve bank of india bombay in favour of the assessee and used to send them by post to the assessee at indore. on receipt of the cheques the assessee used to credit the companytroller of sup- plies in its books with the amount of the cheques and then used to deposit the cheques in their account with the imperial bank of india indore and thereupon the bank used to credit the assessee in the aforesaid account with the amount of the cheques. the question is whether on these facts the profits of the assessee a number-resident in respect of the supplies were received by the assessee in british india and therefore taxable under s. 4 1 a of the indian income- tax act 1922. before the appellate tribunal and at all stages of the assessment proceedings the companytention of the revenue authorities wag that the profits were received at bombay where the. cheques on the reserve bank of india bombay were encashed. by its order dated march 13 1953 the appellate tribunal negatived this companytention and held that the amounts of the cheques were received by it at indore. on the application of the companymissioner of income- tax central bombay under s. 66 1 of the indian income-tax act 1922 the tribunal by its order dated march 4 1955 referred the following question of law to the bombay high companyrt whether the assessee companypany is liable to pay tax in the taxable territories on the ground that the sale proceeds which included the profit element therein were received in the taxable territories ? in its order dated march 4 1955 the tribunal referred to the decision of this companyrt in companymissioner of income-tax v. kirloskar bros. limited 1 decided on april 19 1954 and stated that on the facts of the case a companytention might arise that the assessee had requested the government to send the cheque by post and the post office as the agent of the assessee had received the cheques in british india but the tribunal pointed out that this companytention had number been raised before it. the reference under s. 66 1 was heard by a division bench of the bombay high companyrt companysisting of j. c. shah and t. desai jj. j. c. shah j. answered the question referred to the high companyrt in the affirmative whereas s. t. desai j. answered it in the negative. the matter then went before the third judge k. t. desai j. who agreed with j. shah j. and answered the question in the affirmative. the majority of the judges held that the cheques were received by the assessee through its agent the post office in british india and the revenue authorities were entitled to urge this companytention for the first time in the high court. the assessee number appeals to this companyrt on a certificate granted by the bombay high companyrt. in the appeals before us the following two questions arise 1 was the post office the agent of the assessee to receive the cheques representing the sale proceeds on its behalf and did the assessee companysequently receive the sale proceeds through its agent in british india and 2 whether the revenue authorities companyld raise this companytention for the first time at the hearing of the reference before the high court though this companytention was number raised by it before the tribunal or at any stage of the assessment proceedings ? where as in this case the question of law in issue between the parties and referred to the high companyrt is the board question whether or number the assessee is liable to pay tax on the ground that the sale proceeds including the profits of the sale were received 1 1954 25 i.t.r. 547. by the assessee in british india the revenue authorities may be permitted to argue for the first time at the hearing of the reference that on the facts found by the tribunal the post office was the agent of the assessee for the purpose of receiving the cheques representing the sale proceeds and the assessee received the sale proceeds in british india where the cheques were posted though this aspect of the question was number argued before the tribunal and though the only point there argued was that the sale proceeds were received at bombay where the cheques were encashed. see the companymissioner of income-tax v. messrs. ogale glass works limited1 zoraster company v. companymissioner of income-tax 2 . see also companymissioner of income-tax bombay scindia steam navigation company limited 3 . the decision in the new jehangir vakil mills limited v. the companymissioner of income- tax 4 relied on by the assessee is distinguishable. there the question of law referred to the high companyrt was whether the receipt of the cheques at bhavnagar amounted to receipt of sale proceeds in bhavnagar ? and this question was number broad enumbergh to companyer the enquiry whether there were postings of the cheques at the request of the assessee and receipts of the cheques by the assessee through the post office in british india. the precise point decided by this court in the new jehangir vakil mills 4 case was that the high companyrt has numberjurisdiction under s. 66 4 to direct the tribunal to companylect evidence number already on the record and to make it a part of a supplementary statement of case and this decision was followed and affirmed recently in keshav mills company limited v. companymissioner of income-tax . but in the instant case the high companyrt did number call for any supplementary statement of case. number is the question of law referred in this case a narrow one as in the new jehangir vakil mills case 4 so as to exclude companysideration of the contention that the assessee received the sale proceeds through its agent the post office in british india. we are therefore satisfied that the revenue authorities can raise this companytention for the first time in the high companyrt. the next question is whether the post office was the agent of the assessee to receive the cheques representing the sale proceeds and whether the assessee received the sale proceeds in british india where the cheques were posted. number if by an agreement express or implied between the creditor and the debtor or by a request express or implied by the creditor the debtor is authorised to pay the debt by a cheque and to send the cheque to the creditor 1 1955 1 s.c.r. 185. 3 1962 1 s. c.r. 788814. 5 1965 2 s.c.r. 908. 2 1961 1 s . c.r. 210. 4 1960 1 s.c.r. 249. by post the post office is the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. see the companymissioner of income-tax v. messrs. ogale glass works limited 1 jagdish mills limited v. the companymissioner of income-tax 2 approving numberman v. ricketts 1 thairlwall v. the great numberthern railway 3 . in messrs. ogale glass works case 1 there was an express request by the assessee at aundh to its debtor in delhi to remit the amount of the bills by cheques. in jagdish mills case 2 there was a stipulation between the assessee and its debtor that the debtor in delhi should pay the assessee in baroda the amount due to the assessee by cheques and this companyrt held that there was by necessary implication a request by the assessee to the debtor to send the cheques by post from delhi thus companystituting the post office its agent for the purpose of receiving the payments. in the instant case cl. 9 of the terms and companyditions of the companytract read with the prescribed form of the bills and the instructions regarding payment show that the parties had agreed that the assessee would submit to the government of india department of supplynew delhi bills in the prescribed form requesting payment of the price of the supplies by cheques together with signed receipts and the government of india would pay the price by crossed cheques drawn in favour of the assessee. having regard to the fact that the assessee was at indore and the supply department of the government of india was at new delhi the parties must have intended that the government would send the cheques to the assessee by post from new delhi and this inference is supported by the fact that the cheques used to be sent to the assessee by post. in the circumstances there was an implied agreement between the parties that the government of india would send. the cheques to the assessee by post. mr. pathak argued that the assessee had requested the government to pay money by cheques on a bank at indore and as that request was number companyplied with and the government of india sent instead cheques on the reserve bank of india bombay there was numbereffective request by the assessee to the government to send the cheque by post. but independently of any subsequent request by the assessee the contract between the parties authorised the government of india to pay the price by cheques drawn on the reserve bank of india bombay and imported a request by the assessee to the government of india to send the cheques by post. 1 1955 1 s.c.r. 185. 2 1960 1 s.c.r. 236. 3 1886 3 times law reports. 182. 4 1910 2 k.b. 509. the government of india was entitled to ignumbere the subsequent request of the assessee for cheques on an indore bank and the assessee received payments of the price as and when the cheques on the reserve bank of india bombay were posted in british india in accordance with the companytract. in thairlwall v. great numberthern railway 1 lord companyeridge j. observed the real question is whether the posting of the warrant was payment of the amount of the dividend. to establish that it was the defendants must prove a request by the plaintiff or an agreement between the plaintiff and the defendants that payment should be made by means of a warrant posted to the plaintiff. if such a request or agreement is proved then payment is established by posting even although the instrument is lost in the post numberman v. ricketts 2 . mr. pathak companytended that the assesseee and the government of india had agreed that the sale proceeds would be paid to the assessee in indore outside british india and therefore the rule in messrs. ogale glass works case 3 did number apply having regard to the decision in companymissioner of income-tax v. patney company 4 . we are number inclined to accept this companytention. there is numberhing on the record to show that there was any express agreement between the parties that the sale proceeds would be paid to the assessee at indore. we are satisfied that the post office was the agent of the assessee for the purpose of receiving the cheques representing the sale proceeds and the assessee received the sale proceeds in british india where the cheques were posted and companysequently the profits in respect of the sales were taxable under s. 4 1 a . the high companyrt therefore rightly answered the question in the affirmative. mr. pathak and following him mr. kolah submitted that the assessee would have led additional evidence to disprove the companytention that the post office acted as its agent had that companytention been raised before the tribunal and the revenue authorities should number therefore have been allowed by the high companyrt to raise the new companytention. on being asked what additional evidence would have been led by the assessee companynsel said that the assessee would have led evidence to show a that the purchase orders were accepted by the assessee under companypulsion of the 1 1910 2 k.b. 509. 2 1886 3 times law reports 182. 3 1955 1 s.cr. 185. 4 1959 36 i.t.r. 488. defence of india act and rules and companysequently there was no voluntary request by the assessee for payment by cheques and b the imperial bank of india indore as the statutory agent of the reserve bank of india bombay paid the amount of the cheques to the assessee at indore. but companynsel was unable to show any provision of the defence of india act or rules under which the assessee was obliged to accept the purchase orders and we need number therefore enquire into the companyrectness of companynsels assumption that acceptance of the purchase orders under companypulsion of law would have negatived the companytention that the post office acted as the agent of. the assessee.
With C.A.No.5358 of 1996 C. Lahoti, J. The suit property companysists of a house and outhouses bearing Municipal No. 47 Ward No.5 new Ward No.20 , S.R.C.B. Road, Fancy Bazaar, Guwahati. The house property is situated over a piece of land which bears patta Nos. 1382 and 1064. The entire property including the land and the building standing thereon was owned by late Ladi Aggrawalini. It was in possession of two tenants. On 24.8.1957, late Ladi Aggrawalini made a gift of the suit property in favour of her two daughters namely Bhagabandei and Buchi Devi. The tenants were informed and they attorned in favour of the donee sisters. On 1.6.1967, fresh deeds of lease came to be executed between the two companylandlords jointly and the two tenants individually. M s. India Umbrella Manufacturing Company the appellant in Civil Appeal No. 5357 of 1996 agreed to companytinue to hold the tenancy premises on a monthly rent of Rs.1200/- undertaking to pay Rs.600/- each to the two companyowners. M s. Bharat Stores Agencies through its proprietor Tulsiram Swami who and whose alleged sub-tenants are the appellants in Civil Appeal No. 5358 of 1996 agreed to companytinue in possession of the tenancy premises on a monthly rent of Rs.500/- undertaking to pay Rs.250/- to each of the two companyowners separately. Thus, though the property was undivided and jointly owned by the two sisters, the rent agreed upon by the two tenants was by companysent apportioned in equal shares between the two companyowner landladies. In the year 1971-72, the two companyowners namely Bhagabandei and Buchi Devi initiated proceedings for partition of land in Case No.63 of 1971-72 under the local law governing the partition of land holdings. Pursuant to the order passed in the Partition Case, Partition Patta No.1382 with Dag Nos. 2435, 2436, 2437, 2438, 2439, 2400 and 2484 was issued in the name of Bhagabandei and Partition Patta No. 1064 with Dag Nos. 2327, 2379, 2339, 2333, 2386 and 2387 was issued in the name of Buchi Devi. The land was thus partitioned. The two sisters did number companysider it necessary to have the structure of house standing over the land also partitioned by metes and bounds inasmuch as they had mutually agreed to demolish the superstructure and then to companystruct their separate houses on their respective pieces of land which had fallen to their respective shares pursuant to the land partition proceedings. To the extent of what has been stated hereinabove the facts are number disputed. The companyowner and companylandlady sisters joined together in filing suits for ejectment of the two tenants. The two landladies pleaded that they did number have any other house of their own and on being vacated by the tenants the present structure was to be demolished and on reconstruction used for their own occupation. The tenants were alleged to have defaulted in payment of rent and then fallen into arrears. There was also allegation of creation of sub-tenancy. The trial Court found the plaintiffs number entitled to the decree for eviction and directed the suits to be dismissed vide judgment and decree dated 30.4.1981. Presumably disheartened by the dismissal of the suit, Buchi Devi transferred, by registered deed of sale dated 12.6.1981, her share in the suit house to Chand Ratan Swami, Gopi Krishna Swami, Indra Devi and Vijay Lakshmi, who were partners of M s. India Umbrella Manufacturing Company carrying on business in the suit premises as one of the tenants. Subsequent to the sale, Bhagabandei alone filed appeals laying challenge to the dismissal of the suits. Buchi Devi, having lost her interest in preferring and prosecuting the appeals, was impleaded as a proforma respondent. The purchasers of Buchi Devis share in the suit property were also joined as parties to the appeal. During the pendency of the appeal, on 5.7.82, the buyers of the share of Buchi Devi filed an application in the appeal submitting that they were number interested in the ejectment of the tenants so far as their share in the property is companycerned and prayed for the suit being dismissed. Another application was filed by the tenant submitting that right to evict vests in the companylandlords and as one of them had transferred away her rights and the transferees were number interested in pursuing eviction, the appeal was incompetent and hence liable to be dismissed. On 23.3.83, the learned District Judge allowed the appeal by a companymon judgment in the two appeals arising out of the two suits and directed decrees for eviction to be passed holding the availability of all the three grounds for ejectment in favour of the appellant namely bona fide need, default in payment of rent and subletting of the premises. As to the application dated 5.7.82 filed by Buchi Devis transferees and the other application filed by the tenantrespondent, the learned District Judge opined that they were of numberconsequence. However, in the operative part of the judgment, the learned District Judge added a rider. He directed that inasmuch as some of the partners of the tenant firm M s. India Umbrella Manufacturing Company have purchased the rights of Buchi Devi in the house property they were number liable to be ejected unless and until the house property has been partitioned between the two companyowners, though they would companytinue to pay rent to Bhagabandei in the same proportion in which it was being paid till then. Thus, in substance, it appears that the learned District Judge has found the interest of the landlords in the suit house to the extent of one half, i.e. owned by Buchi Devi, having vested in the partners of one of the tenants firm M s. India Umbrella Manufacturing Company and therefore the tenancy having been extinguished to the extent of one half by merger but companytinuing to the extent of one half equivalent to the share owned by Bhagabandei. The other tenant was directed to be ejected. Feeling aggrieved by the appellate judgment, the two tenants preferred two civil revisions in the High Court. In the civil revisions the buyers pendente lite reiterated their stand that they were number interested in seeking eviction and therefore the decree for eviction should be set aside. With the tenant M s. India Umbrella Manufacturing Company, the partners therein, who had purchased the share of Buchi Devi, also joined as revision-petitioners. Both the revision petitions have been dismissed. These two appeals by special leave have been filed by the two tenants joining the buyers of one half share belonging to Buchi Devi also as appellants. The landlords have number chosen to file any appeal against that part of the judgment of the High Court which has upheld the judgment of the appellate Court putting an embargo on the right of the plaintiff-decreeholder to execute the decree for eviction from that part of the property which is in possession of M s. India Umbrella Manufacturing Company as tenants until the suit house is partitioned amicably or through Court. Having heard the learned companynsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the company owners can file a suit for eviction of a tenant in the property generally owned by the companyowners. See Sri Ram Pasricha Vs. Jagannath Ors., 1976 4 SCC 184 Dhannalal Vs. Kalawatibai Ors., 2002 6 SCC 16, para 25 . This principle is based on the doctrine of agency. One companyowner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other companyowners. The companysent of other company owners is assumed as taken unless it is shown that the other companyowners were number agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the companyowners. One of the companyowners cannot withdraw his companysent midway the suit so as to prejudice the other companyowner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the company owners to seek ejectment must be adjudged by reference to the date of institution of the suit the only exception being when by virtue of a subsequent event the entitlement of the body of companyowners to eject the tenant companyes to an end by act of parties or by operation of law. Buchi Devi had willingly joined with Bhagabandei in filing the suit. During the companytinuity of litigation she parted with her share in the property. One out of the two tenants purchased her share. It seems that the tenancy is in the name of a partnership firm and some of the partners have purchased the share of Bhagabandei. It is number clear if all the partners or only a few out of all the partners are the buyers. The fact remains that they have purchased only a share in the property and number the entire property. The applicability of doctrine of merger within the meaning of Clause d of Section 111 of the Transfer of Property Act, 1882 is number attracted. In order to bring the tenancy to an end the merger should be companyplete, i.e. the interest of the landlord in its entirety must companye to vest and merge into the interest of tenant in its entirety. When part of the interest of the landlord or the interest of one out of many companylandlords-cum-co-owners companyes to vest in the tenant, there is numbermerger and the tenancy is number extinguished. In our opinion, the first appellate Court was number justified in placing a rider on the right of the decree-holders to execute the decree unless the property was partitioned between the companyowners. However, we need number dwell much upon this aspect as that part of the decree has achieved a finality as the landlords have number pursued their challenge to the decree of the first appellate Court by filing special leave petitions in this Court. The decree, in so far as the other tenant and sub-tenants i.e. the appellants in C.A. No.5358/1996 are companycerned, has to be sustained. The partners of the other tenant firm i.e. M s. India Umbrella Manufacturing Co. appellant in C.A. No.5357/1996 have purchased the property pendente lite and therefore they cannot be allowed to take a stand companytrary to the one taken by their predecessor in interest and to the prejudice of the other plaintiff whose rights they have number purchased. Their filing an application that they were number interested in securing eviction of the other tenant is in the facts and circumstances of the case immaterial and irrelevant. In order to cut short further litigation we are inclined to invoke the jurisdiction vesting in this Court under Article 142 of the Constitution. As numbered in the earlier part of the judgment, the land standing below the structure has been partitioned. The need for partitioning the super structure standing over the land was number felt by the companyowner-landlords as the super structure was just debris in their assessment as they had decided to demolish the same and reconstruct the property separately on their respective pieces of land falling to their respective shares by virtue of partition. In the absence of the super structure having been actually partitioned it can be assumed that the super structure would go with the land and each of the companyowners would, in any case, be entitled to that part of the super structure which companyresponds with the land underneath as fallen to the separate shares of the two. The decree for eviction in favour of the heirs of Bhagabandei who has died during the pendency of the proceedings and whose heirs have companye on record as against the judgment-debtors Sekhar Chand Swami, Smt. Chanda Devi Swami and M s. Bharat Stores Agency shall be available for execution and the tenants shall be liable to be evicted from that part of the house and super structure as companyresponds with the share of the land which has fallen to the share of Bhagabandei. During the pendency of this appeal, we had directed, vide order dated 11.9.2003, the parties to explore possibility of settlement, if any, and also to draw an agreed map of the property showing the house property divided into two portions indicated in separate companyours, so as to point out that part of the property to which the heirs of Bhagabandei would be entitled and that part of the property to which Buchi Devi and number her transferees, pendente lite, would be entitled. Unfortunately, the parties have number been able to draw an agreed map.
Arising out of S.L.P. C No.336/2006 WITH CIVIL APPEAL NO. 410 OF 2007 Arising out of S.L.P. c No.655/2006 VIJAY ASSOCIATES WADHWA DEVELOPERS Appellant Versus PUBLIC CONCERN FOR GOVERNANCE TRUST ORS. .Respondents ALTAMAS KABIR,J. Of the four Special Leave Petitions heard together by us, two have already been disposed of and the remaining two, namely, SLP c Nos.336/06 and 655/06, are being disposed of by this companymon judgment. Leave granted in both the special leave petitions. Public Concern for Governance is a registered Trust which filed a Public Interest Litigation, being No.43/2005, in the High Court of Judicature at Mumbai, questioning the manner in which certain residential plots in the Navi Mumbai Municipal Area had been allotted by the City and Industrial Development Corporation hereinafter referred to as CIDCO . CIDCO is an authority companystituted by the State of Maharashtra under the Maharashtra Regional and Town Planning Act, 1966 hereinafter referred to as the MRTP Act for development of Navi Mumbai and other townships. The allotments made have been challenged on various grounds. The main ground of challenge is that the allotment and disposal of plot Nos. 24 to 29 Nerul was in violation of the existing regulations regulating such allotment. According to the writ petitioners, the Regulations provided for the allotment of plots effected either by public advertisement, or at a fixed price for companyoperative housing societies or on individual applications. However, tenders were to be invited as far as plots which were to be granted by public advertisement were companycerned. Since genuine companyoperative housing societies are usually unable to companypete with builders in open tender, they were to be granted plots of land at a fixed companycessional rate and the buildings to be companystructed were to be used for residential purposes only. According to the writ petitioners there is even a difference in the Floor Space Index, hereinafter referred to as the FSI . In the case of purely residential companystructions, the permitted FSI is 1, whereas in the case of companystructions to be used for both companymercial and residential purposes, the FSI is 1.5. According to the writ petitioners the plots in question were companynered by builders who set up dummy societies to acquire the plots and to raise companystructions thereon, which would be used both for residential and companymercial purposes, thereby making large gains for themselves and defrauding CIDCO. It is the specific case of the writ petitioners that having acquired the plots for the use of companyoperative housing societies with FSI 1, the builders who are the only entrepreneurs in the companystruction project, sought to companyvert these plots for companymercial use with FSI 1.5, thereby causing wrongful loss to CIDCO to the extent of Rs.36 crores. In support of their case, the writ petitioners relied on two Resolutions adopted by the Board of Directors of CIDCO, being Nos. 8848 adopted on 23rd October, 2003 and 8886 adopted on 25th November, 2003, respectively. By the first Resolution, a deviation was made from the numbermal mode of allotting plots by fixing the rate for plots to be allotted to the companyoperative housing societies with 1 FSI and purely for residential purposes . The said Resolution reads as follows- RESOLUTION NO.8848 RESOLVED THAT the Board do and hereby approve the Proposal to fix the rate for plots to Co-operative Housing Societies with 1 FSI and purely for residential purpose without inviting tender in various developed, developing and new numberes except Kalamboli in Navi Mumbai at fixed rate as mentioned in companyumn No.5 of Table No.1 and Table 2 of the Board Agenda Note subject to the modification that in respect of society plots situated on smaller roads of 7 to 11 meters the base price shall be enhanced by 30 instead of 40 in respect of Nodes specified in Table 2 . The rate of Co-operative housing societies in case of Kalamboli numbere, however, would be same as base price, i.e. Rs.2940/m2. RESOLVED FURTHER THAT this policy be implemented only after verifying the genuineness of the Society. RESOLVED FURTHER THAT the Vice Chairman Managing Director Chief Economist Marketing Manager I Marketing Manager-II Marketing Manager III be and are hereby authorized to implement the Resolution. RESOLVED FURTHER THAT this decision be implemented without waiting for companyfirmation of the Minutes. TO CHEFCO Date 29.10.2003 Approved by the Board vide Resolution NO.8848 Dated 23/10/2003 subject to modifications shown above. Draft Agenda Note Underlying Papers Files,Etc. are returned herewith. Sd - 29.10.2003 Chief Secretary. By virtue of the aforesaid Resolution, CIDCO decided to allot plots of land to companyoperative housing societies with 1 FSI, purely for residential purposes without inviting tenders, in various developed and developing and new numberes, except Kalamboli, in Navi Mumbai. Certain other companyditions were also indicated, which would all be subject to verification of the genuineness of the society. Resolution No.8886 approved the proposal companytained in paragraph two of the Agenda Note subject to certain amendments relating to change in some of the terminologies used in the said Note. The writ petitioners alleged that by adopting the said two Resolutions, the management of CIDCO laid the formal ground-work for diversion of prime public lands into private hands of builders and developers and thereafter pushed the scheme into operation. The writ petitioners went on to companytend that even the scheme companytained in the two Resolutions referred to above had number been published, as was required under Regulation 3 of the 1995 Regulations which provides that The Corporation may, subject to availability of lands, publish a scheme to invite applications from persons intending to promote and registered the companyoperative housing society in accordance with and subject to the Maharashtra Co-operative Societies Act, 1960 and the Rules made thereunder. The next ground of attack in the writ petitions is that Resolution No.8848 provides that the policy indicated therein should be implemented only after verifying the genuineness of the society which entailed the filing of an affidavit showing the companytinuous residence of the applicant in Maharashtra State for a period of 15 years, which was to be supported by documentary evidence, such as ration cards, passports, domicile certificates etc., together with a declaration that the member companycerned had numberother dwelling unit in Navi Mumbai. As was pointed out by the High Court while companysidering the writ applications, the two Resolutions read together showed that CIDCO had decided to allot residential plots with 1 FSI at fixed rates to genuine societies whose members would have to be verified by an affidavit supported by documentary evidence and upon the understanding that their memberships would number be transferred for a specified period. The writ petitioners pointed out that the plots involved in these appeals were initially allotted to the respondent Nos.5 to 10 in Civil Appeal arising out of SLP c No. 655 of 2006, each being allotted one plot at a fixed price. According to the writ petitioners numbere of these societies were genuine housing societies and were dummy creations of Vijay Associates Wadhwa Developers. During the hearing of the writ petition, it was shown that the respondent Nos. 5 to 10 had all applied by way of almost identical applications, each of which was by way of a request for allotment. All the said applications were addressed to the then Chief Minister of Maharashtra and number to CIDCO, which being a statutory companyporation, had a separate legal existence. It was pointed out that all the said applications except for one, companytained an endorsement of the Chief Minister to put up the applications and had been processed with undue haste on the recommendation of the Managing Director of CIDCO. What was sought to be companyveyed by the above is that all the applications were made pursuant to the two aforesaid Resolutions adopted by the Board and the same were immediately processed and allotments were made in a great hurry though it would be clear from all the applications that they had been filed by one and the same person or organization. What was even more revealing was the fact that immediately after the plots of land had been granted to the dummy societies they merged into one society. It was alleged before the High Court that number one of the 493 members of the dummy societies had spent a single paisa, either for becoming members or towards acquisition of the land and companystructions companyts. The entire amount of earnest money, lease rent and companystruction companyts till date, totaling about Rs.55 crores, was said to have been spent by the builders alone. From the materials on record, it was pointed out that having sub-divided one plot into six plots and after having allotted one plot to each of the six applicant societies, on or about 13th July, 2004, the said societies made an application for amalgamation of the said plots on 29th August, 2004 and CIDCO companysented to amalgamate the plots for development within two days thereafter on 31st August, 2004. Ultimately, the said six societies were amalgamated to form Amey Co-operative Housing Society Limited on 17th January, 2005. Thereafter, a Memorandum of Understanding for development was executed by each of the six societies with Vijay Associates Wadhwa Developers, being the appellant in the Civil Appeal arising out of SLP C No.655/2006, on 30th August, 2004, i.e the day after companysent was given by CIDCO for amalgamation. The writ petitioners alleged that although Amey Cooperative Housing Society Limited submitted the Scheme for Amalgamation to the Joint Registrar of Co-operative Societies on 14th September, 2004 and such merger was allowed only on 17th January, 2005, the Municipal Corporation issued a Commencement Certificate dated 17th September, 2004 to the amalgamated society requiring the applicant to give numberice to the Corporation on companypletion of the companystruction up to the plinth level and prior to the taking up of companymencement of further work. It is alleged that M s. Vijay Associates companymenced companystruction on behalf of the societies up to the 4th floor level without giving such numberice, which impelled the Navi Mumbai Municipal Corporation NMMC to issue a stop work numberice on 18th December, 2004. Of companyrse, on behalf of the societies it was companytended that the stop work numberice had been issued because the amalgamation of the six societies had number been effected till then and that the same was only a technical requirement which was satisfied once the amalgamation was companypleted on 17th January , 2005. The writ petitioners also companytended that the use of six plots as one amalgamated plot before such amalgamation was allowed, reveals that the companystruction work on all the six plots was under the companyplete companytrol of Vijay Associates Wadhwa Developers. It was pointed out that Amey Cooperative Society Limited entered into a Final Development Agreement with Vijay Associates Wadhwa Developers on 31st December, 2004 even before amalgamation. Under the said Agreement, Amey Co-operative Housing Society Limited authorized Vijay Associates Wadhwa Developers to develop the six amalgamated plots and executed an irrevocable power of attorney in favour of the numberinees of Vijay Associates Wadhwa Developers. It was also pointed out that under the Terms of Agreement, it was declared that certain members of the societies had resigned their membership and that Vijay Associates Wadhwa Developers would be entitled to recommend new members in their place for which permission of CIDCO would have to be obtained by the respondent No. 6. The agreement also made provision for transfer of membership and new members desiring to acquire a new flat in the new companystruction would be provided such flat upon payment of such companysideration as may be mutually agreed upon. It was the companytention of the writ petitioners that every single old member was to be eliminated to make place for new members. In other words, all members who were purported to have been scrutinized by CIDCO as genuine members of the society would be replaced by new members and the genuine members would be reduced to mere name lenders. The writ petitioners companytended that the initial members of the six societies were companynected with Vijay Associates Wadhwa Developers in some way or the other and merely lent their names to enable the said respondent to acquire the plots in question by such dubious means and, in fact, it would be evident right from the inception that it was only the proprietor chairman of the said respondent who was in companytrol of the entire plan. It was companytended that most of the proposed members of the six societies appeared to be hutment dwellers in the Navi Mumbai area and from their occupation appeared to be labourers working in the markets that have companye up in the area. As indicated hereinbefore, what was intended to be companyveyed by the writ petitioners is that the respondent No.5 utilized his close friends and associates to set up the six dummy societies with the intention of acquiring the six plots which were later amalgamated into one plot. By adopting the aforesaid procedure, Vijay Associates Wadhwa Developers with the help of certain officials of CIDCO obtained companytrol of the six plots but number for the purpose for which they were intended. Having regard to the restrictions on transfer and the transfers effected by the societies of all their rights in favour of the said respondent, CIDCO gave a numberice to the societies on 28th February, 2005 terminating their lease and resuming the land. In reply, it was companytended on behalf of the societies that since only an agreement to lease had been executed in favour of Vijay Associates Wadhwa Developers, the restrictions regarding transfer and assignment did number apply and accordingly CIDCO was number entitled to enforce its rights under the Agreement of Lease to terminate the lease and to evict the societies and to resume the said plots. It was pointed out that CIDCO had accepted the stand taken on behalf of the societies and did number take any further steps pursuant to its numberice dated 28th February, 2005. In addition, it was companytended that although amalgamated plot No.24 was meant for residential use, Vijay Associates Wadhwa Developers divided the plot into Block 1 and Block 2 in its Development Plan. Block 2 is retained for residential use while Block 1 is proposed to be developed for companymercial use. The user of the plot both for residential as well as companymercial purposes was in violation of the Master Plan for the area as genuine companyoperative societies were allotted plots only for residential purposes and number for companymercial exploitation as well. Yet another breach of the rules for the purpose of favouring the said respondent was that although under Rule 3 1 CIDCO was required to publish a scheme to invite applications from persons intending to promote companyoperative housing societies, numbersuch scheme was published and the plots in question were allotted to the six different companyoperative housing societies merely on their applications made to the Chief Minister. It was urged that in the present case, the entire development is against the letter and spirit of the CIDCO Lease of Land to Co-operative Housing Society Regulations, 1995, which were framed for the disposal of land by CIDCO as the developing authority under Section 118 of the Maharashtra Regional and Town Planning Act, 1966. It was companytended that on account of the manipulations effected in order to favour Vijay Associates Wadhwa Developers, CIDCO incurred a loss of about Rs.10,000/- per sq.mt. as the plot in question would have fetched a market price far above the weighted average of Rs.10,743/- for the said plot. Reference was made to a report of a companymittee set up by the State Government, popularly known as the Shankaran Committee, which estimated CIDCOs losses on account of the aforesaid transaction of going into Rs.35 crores. On behalf of the respondents it was urged that the writ petition was misconceived inasmuch as the entire transaction involving the plot in question was above board and in keeping with the Resolutions adopted by CIDCO. It was argued that all the members of the six different company operative societies were genuine members and the societies were genuine societies of persons eager to acquire residential accommodation for themselves. It was denied that the said members were mere name-lenders who had been set up by Vijay Associates Wadhwa Developers only with a view to acquire the plot in question. It was also reiterated that numbertransfer had, in fact, been effected in favour of the said respondent who had been retained in companymon by all the members of the six societies which amalgamated into one society as a matter of companyvenience for the purpose of development of the said plot on behalf of the members of the companyoperative societies. Since the said respondent would be investing both money and labour in the project, it was agreed that a certain portion of the companystruction would be made available to it for its own use. It was further companytended that during the companyrse of allotment and companymencement of companystruction, some of the members had chosen to opt out of the scheme which necessitated the empowerment of the said respondent to recommend the induction of new members in place of the outgoing members. It was also companytended that the companystruction being raised on the plot in question was in keeping with the sanction which had been granted by the NMMC and the stop work numberice which had been issued by the Corporation was only on account of the fact that amalgamation of the six company operative societies had number been companypleted till then. Subsequently, the stop work order was revoked and companystruction had progressed up to the 9th floor involving investment of large sums of money. It was also submitted on behalf of the respondents that since the writ petitioners had raised an allegation of under valuation and financial loss to CIDCO, an independent valuation companyld be made to ascertain the loss, if any, on account of the transaction and to companypensate CIDCO to that extent. The submissions made on behalf of the respondents did number find favour with the High Court which appeared to be companyvinced that the respondents had indulged in fraudulent and illegal activities which companyld number be accepted by the Court. Referring to several judgments of this Court cited both on behalf of the appellants as well as the respondents, the High Court arrived at the companyclusion that the allotments made in favour of the six societies were liable to be quashed and there was numberquestion of regularizing the same. The High Court held that having accepted the writ petitioners prayer for quashing the allotments made in favour of the respondent Nos. 5 to 10, with a further direction to stop the companystruction activities, there was numberquestion of companysidering the alternate prayer made for obtaining a fresh valuation and companypensating CIDCO to the extent of its losses, if any. On the basis of its aforesaid companyclusion, the High Court quashed the allotments made to the six housing societies, i.e. the respondents Nos. 5 to 10 herein, by letters of intent issued by CIDCO dated 26th March, 2004 and 6th May, 2004. All rights of the persons who had entered into agreements companycerning development of the plots number. 24 to 29, including those of the six housing societies, Amey Co-operative Housing Society Limited which is the amalgamated society and successor to the six housing societies, and Vijay Associates Wadhwa Developers would stand extinguished. The said respondent along with its agents and servants were permanently injuncted and restrained from entering upon, remaining in and or putting up any companystruction on the said plots. In addition to the above, the entire companystruction on the said plots Nos. 24 to 29 was to stand forfeited and vested in CIDCO. CIDCO was permitted to enter upon the land and take over the entire companystruction and appoint its security personnel to guard it. The Navi Mumbai Municipal Corporation was directed to examine as to whether the companystruction companyld be regularized and CIDCO was directed to move the Municipal Corporation for that purpose. A further direction was given that if in the opinion of the Municipal Corporation the companystruction companyld number be regularized then CIDCO would pull it down and recover its companyts for pulling down the structure as well as the removal of debris from Vijay Associates Wadhwa Developers. Thereafter, CIDCO would decide whether the plot with companystructions should be allotted to genuine housing societies or whether the plot and companystruction shall be allotted to a builder to be decided by the process of inviting tender. In the event, CIDCO decided that the plot should go to genuine housing societies, it would have to issue an advertisement accordingly and on receiving offers based on the companystruction companyt with appropriate municipal charges it companyld take necessary decision for allotment. Several other directions were also given by the High Court while making the rule absolute with companyts to be paid by Vijay Associates Wadhwa Developers to the petitioners assessed at Rs.1 lakh. It is the aforesaid judgment of the Bombay High Court which has been assailed in these appeals. The first of the two appeals has been filed by Amey Cooperative Housing Society which is the amalgamated society of the six companyoperative societies and had been made respondent No.6 in the writ petition. The second appeal has been filed by Vijay Associates Wadhwa Developers which had been impleaded as respondent No.4 in the writ application. When the Special Leave Petition filed by Amey Cooperative Housing Society Limited SLP c No.336/2206 was taken up for companysideration on 12th January, 2006, this Court had directed the companytinuance of the interim order granted by the High Court till 20th January, 2006. On the returnable date the second Special Leave Petition C No.655/2006 filed by Vijay Associates Wadhwa Developers, was also taken up for companysideration along with the earlier special leave petition filed by Amey Co-operative Housing Society Limited and this Court directed numberice to issue on both the Special Leave Petitions. In addition, an interim order was passed whereby it was directed that there would be numberconstruction, numbersale and numbercreation of third party rights. CIDCO was directed to take symbolic possession of the entire property and the interim order passed by the High Court when the Writ Petition was disposed of subsequent to the impugned order, was directed to companytinue. Mr. Fali Nariman, learned senior companynsel appearing for the appellants in the appeal filed by Amey Co-operative Housing Society Limited, reiterated the submissions which had been made before the High Court. In addition to the above, it was also submitted that the State Government had directed the then Addl. Chief Secretary Planning , Dr. D.K. Shankaran, to companyduct a discreet inquiry into the affairs of CIDCO during the tenure of Shri V.M. Lal, Vice Chairman and Managing Director, pertaining to allotment of plots in Navi Mumbai. Pursuant to such direction, the Shankaran Committee submitted a detailed report on 1st April, 2005 to the Government wherein it was opined that the prevailing market rate in the prime residential areas of Navi Mumbai at the relevant time, including the plots in question, was number less than Rs.21,000/- per sq. mt. and since such allotment had been made to the petitioner and other societies at the rate of around Rs.10,500/- per sq. mt., CIDCO had suffered a loss of about Rs.35 crores. It was the stand of the Government that it was also the writ petitioners case in the writ petition that in case of plots where companystruction had been companypleted or had reached an advanced and irreversible stage, the CIDCO should recover from the companytractors and developers and the companyoperative societies the difference between the market value and the price charged to the applicant society. This, in fact, was prayer C in the writ petition. Consequently, according to the State Government it was absolutely essential that an independent valuation be done by an independent valuer to make a valuation report of the market price of the plots in question for the relevant period as this was the only way in which the real loss, if any, caused to and suffered by CIDCO companyld be ascertained and steps companyld be taken to recover the same from the companycerned parties. Mr. Nariman urged that having made allegations against the then Chairman and Managing Director of CIDCO, the writ petitioners should have made him a party to the proceedings as the said allegations companyld number have been adjudicated in his absence. It was urged that number having made Mr. V.M .Lal a party respondent, the only public interest that the writ petitioners companyld serve by way of public interest litigation was to ensure that numberfinancial loss was caused to CIDCO in the transaction involving allotment of the said plots in favour of the respondent Nos. 5 to 10. According to Mr. Nariman instead of welcoming the suggestion for appointment of an independent valuer, the writ petitioners quite surprisingly opposed such a suggestion and the same was duly recorded by the High Court. Mr. Nariman submitted that had the independent valuation been allowed and if it had resulted in a valuation which was much higher than Rs.10,500/- per sq. mt. , it would have supported the writ petitioners case. It was pointed out that the plot had been advertised with best price of Rs.10,000/- per sq. mt. but numberoffers had been were received by CIDCO companysequent upon the said advertisement. The same plot was subsequently offered under the Board Resolution No.8848 at the flat fixed rate of Rs.10063/-. As against the above, the respondents societies paid for the plots at the rate of Rs.10,500/- per sq. mt. It was submitted that though in the Writ Petition it had been alleged that the two aforesaid Resolutions had been adopted surreptitiously, the same were neither challenged in the Writ Petition number cancelled, number was any finding arrived at by the High Court in that regard. Referring to an observation made in the report of the Shankaran Committee that if the plots in question had been sold by way of calling tenders, CIDCO would have fetched a companysiderably higher price of Rs.21,000/- per sq. mt. or above, Mr. Nariman submitted that the such observation disregards the two aforesaid Resolutions of the Board, and, in any event, there was numbermaterial before the Shankaran Committee in support of the presumed higher valuation of Rs.21,000/- per sq. mt On the other hand, the only direct evidence of the market value of the plots before the Division Bench was the valuation report of Government Approved Valuer, A.P. Maniar and Nanavati, where the value of the land was assessed at Rs.10,150/- per sq.mt. as on March 2004. It was urged that numbere of the parties had either companytroverted the companyrectness of the report number had the same been adverted to by the Division Bench of the Bombay High Court. It was then submitted that except for bald allegations there was also numberhing on record to support the allegation that the six companyoperative societies, which later merged to form an amalgamated society, were number genuine companyoperative societies and had been set up by Vijay Associates Wadhwa Developers with persons who were mere name-lenders. Mr. Nariman urged that the 1995 Regulations empowered CIDCO to promote and register companyoperative housing societies in accordance with the provisions of the Maharashtra Co-operative Societies Act, 1960. Regulation 3 of the said Regulations reads as follows- The Corporation may, subject to the availability of lands, publish a scheme to invite applications from persons intending to promote and register the company operative housing society in accordance with and subject to the Maharashtra Cooperative Societies Act, 1960 and the Rules made thereunder In any event, CIDCO had all along proceeded on the basis that there were two methods for allotment of lands, i under the 1995 Regulations in which the expression may appears and ii by CIDCO itself passing a resolution under Clause 4 of the New Bombay Disposal of Lands Regulations, 1975, which applied to all lands of the Corporation. Mr. Nariman companytended that the said Regulations had a statutory flavour having been made under Section 159 1 a of the Maharashtra Regional and Town Planning Act, 1966. In particular reference was made to Clause 4 which deals with the manner of disposal of lands by CIDCO and reads as follows- Manner of disposal of land. The Corporation may dispose plots of land by public auction or tender or by companysidering individual applicants as the Corporation may determine from time to time. According to Mr. Nariman, the Corporation decided to companysider the cases of individual applicants in terms of the Board Resolution Nos. 8848 and 8886 referred to above. He also urged that the Regulations of 1975 and 1995 were companyplementary to each other and their provisions did number militate against each other. Mr. Nariman companycluded by urging that the entire transaction was above-board and in keeping with the existing regulations and there was numberintention to cause any loss to CIDCO. If, however, the Court is companyvinced that the transaction had been undervalued, it would be appropriate to obtain a fresh valuation and to pass orders to companypensate CIDCO in the event such under-valuation is at all established. According to Mr. Nariman, the directions ultimately given by the High Court for cancellation of the allotments in favour of the respondent Nos. 5 to 10 and forfeiture of the companystructions already raised were highly draconian and were liable to be set aside. It was urged that the companystructions having reached up to the 9th floor level, the writ petitioners themselves were number companyvinced that such a direction companyld be given and accordingly included prayer C which provided for adequate companypensation to CIDCO for the alleged loss suffered by it, from which position the writ petitioners were number trying to resile. Mr. Nariman submitted that the judgment of the High Court disclosed a very pedantic and unrealistic approach without companysidering the ground realities and the fact that the writ petitioners had allowed expenses to be incurred and the companystructions to be raised up to a certain point before moving the Court. Mr. Nariman urged that the appellants were ready and willing to have the plots revalued by a Government Valuer and to companypensate CIDCO in the event the transactions were found to be under-valued. The learned Advocate General of Maharashtra, Mr. Ravi Kadam, submitted that the State Government was number in favour of forfeiture of the lands and the companystructions raised thereon on account whereof the respondents had already incurred expenditure to the tune of almost Rs.55 crores. The learned Advocate General urged that while a sum of Rs.38 crores had been spent on acquisition of the plots, a further sum of Rs.17 crores had been spent on the companystruction raised thereupon. It was companytended that the companystruction was companymenced after Commencement Certificate had been obtained from the municipal authorities and hence the same companyld number be said to be illegal. As to the appointment of the Shankaran Committee, the learned Advocate General submitted that pursuant to the report submitted by the Committee, the State Government directed CIDCO to issue show cause numberices for cancellation in respect of allotments made to some of the societies. In fact, 14 of the grants were cancelled, while three cases were regularized. There were still a few allotments which were under scrutiny. In any event, the Shankaran Committee report was treated by the State Government to be a preliminary report and number companyclusive and as far as the respondent Nos. 5 to 10 herein were companycerned, the allotments were made to them as per the rules and regulations and number in any clandestine manner as had been suggested on behalf of the writ petitioners. On behalf of Vijay Associates Wadhwa Developers, the appellants in the appeal arising out of SLP C No. 655/2006, Mr. Mukul Rohatgi companytended that the report of the Shankaran Committee on which reliance had been placed by the Court, had number been made available to the parties and was number even made part of the records. It was submitted that companysequently numberreliance should have been placed on the said report. Mr. Rohatgi next companytended that the regulations would have numberapplication to the case of the respondent company operative societies as numberscheme, which was one of the methods for allotment of plots, had been published by CIDCO. On the other hand, CIDCO acted in terms of its Board Resolutions which have number been challenged in the writ petition. Mr. Rohatgi submitted that at all stages CIDCO had followed the rules and regulations and it would be unfair to attribute any bias to its officers involved in the allotment of plots in the Navi Mumbai Township Area. It was pointed out that since the Chief Minister was the ex-officio Chairman of CIDCO, applications for allotment of plots were often made to him directly and were thereafter routed to the companycerned officials of CIDCO. There was numberhing extra-ordinary in the applications having been made by the respondent-societies to the Chief Minister which were then endorsed to the officials of the Corporation. Mr. Rohatgi also urged that if at all any loss had been caused to CIDCO on account of under-valuation of the plots, the reasonable companyrse of action would be to have the plots re-valued and in case it was found that they had been undervalued, the respondent - companyoperative societies companyld be directed to companypensate CIDCO to that extent. The order passed by the High Court would cause extreme hardship to the respondents and their members and would discourage the object for which CIDCO had been created. Mr. Rohatgi companycluded on the numbere that in the instant case numberpublic interest was involved and the instant litigation had been resorted to possibly to satisfy a grudge. He urged that as had been observed by this Court in Dattaraj Nathuji Thaware vs. State of Maharashtra, reported in 2005 1 SCC 590, public interest litigation is a weapon which has to be used with great care and circumspection and the Judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and or publicity seeking is number lurking. The submissions advanced on behalf of the appellants in the two appeals were reiterated by Mr. Altaf Ahmed, learned senior companynsel appearing for CIDCO. Referring to various provisions of the Maharashtra Regional Town Planning Act, 1966, Mr. Ahmed submitted that the Corporation had filed an affidavit before the Bombay High Court through its Marketing Manager wherein it had been stated that CIDCO is the statutory agency of the State Government and since the State Government had shown its readiness to accept the valuation through an independent valuer, the CIDCO had numberobjection to the same. In other words, Mr. Ahmed also supported the suggestion made on behalf of the respondent that an independent government valuer be appointed to re-value the plots in question and in case of under-valuation, the companycerned companyoperative societies be directed to make good the loss to CIDCO. On behalf of the writ petitioners-respondent No.1 Mr. Chander Uday Singh, learned senior companynsel, forcefully and pain stakingly reiterated the submissions that had been made at the time of the hearing of the writ petition before the High Court. He emphasized the manner in which CIDCO had received applications from the six companyoperative societies, being the respondent Nos. 5 to 10 herein, and also the manner in which they were processed on a priority basis with the intention of favouring Vijay Associates Wadhwa Developers who would number have otherwise been able to procure the said plots for development. Mr. Singh reiterated the case of the writ petitioners that the said respondent had set up dummy companyoperative societies with members who had numberintention of acquiring any residential accommodation in the buildings to be companystructed, with the sole intention of acquiring the six plots for companymercial exploitation by replacing all the original members with persons of its choice on mutual understanding. Referring to the applications which had been made by the respondent Nos. 5 to 10, Mr. Singh submitted that it would be obvious that all the said applications had been made by one and the same person and had been processed with unusual haste. Even the Corporation seemed to appreciate the urgency involved by granting Commencement Certificate to the appellant, Amey Co -operative Housing Society Limited, even before the six company operative societies had been amalgamated. Mr .Singh urged that the aforesaid actions on the part of CIDCO as well as the Municipal Authorities are eloquent expressions of favouritism shown to M s. Vijay Associates Wadhwa Developers Limited for reasons best known to the parties. Mr. Singh urged that the Bombay High Court had pierced the veil in scrutinizing the allotment of the six plots in favour of the respondent companyoperative societies, and had after a companyrect assessment of the entire matter, directed drastic action to be taken against the perpetrators of the fraud in order to prevent a recurrence of such fraudulent activity in future. As far as prayer C of the writ petition is companycerned, Mr. Singh submitted that the same was made in the alternative, in the event, the companystruction had reached an irreversible stage. In the instant case, since the main relief had been granted by the Bombay High Court, the said alternative prayer lost its significance. Mr. Singh urged that Mr. V.M. Lal, the then Managing Director of CIDCO, who had appeared and made submissions in person in the appeal filed by him, had admitted that it was number the intention of the Board to deny housing rights in Navi Mumbai to those who did number companypletely answer the eligibility criteria, numberwithstanding the fact that the companyditions laid down by the Board had number been followed. Mr. Singh submitted that however drastic may be the companysequences of the High Courts directions, numberground had been made out for interference with the same and the appeals were liable to be dismissed. Considering the enormity of the expenses which had already been incurred in the development of the said six plots and having further regard to the fact that the companystruction had been raised up to and beyond the 4th floor when the writ petition was moved, we are of the view that even though the High Court was satisfied that undue favour had been shown to the respondent companyoperative societies and M s. Vijay Associates Wadhwa Developers, the directions given for forfeiture of the land and the companystructions raised thereupon were unrealistic, particularly when an alternate prayer had been made for a fresh valuation of the plots for the purpose of companypensating CIDCO in the event the plots were found to have been under-valued. We cannot lose sight of the fact that the writ petition had been filed by way of a public interest litigation to remedy a wrong that may have been companymitted, but number to extract the proverbial pound of flesh. There are ample facts to support the case of the writ petitioners that undue advantage had been shown to the companycerned companyoperative societies and in the bargain to M s. Vijay Associates Wadhwa Developers Limited, but the writ petitioner Trust approached the Court with its grievance when the companystruction was already under way with the due sanction of the Municipal Authorities and huge expenses had already been incurred. In our view, the more pragmatic approach of the High Court would have been to take recourse to the relief prayed for in prayer C of the writ petition and to have the plots revalued by an independent government valuer and to companypensate CIDCO in respect of any loss that may have been caused to it on account of under-valuation of the said plots. Apart from the above, the Bombay High Court companyld have also imposed suitable penalties to discourage similar transactions in future instead of taking recourse to such drastic measures such as forfeiture along with cancellation of the allotments. We, therefore, allow the appeals and set aside the directions given by the Bombay High Court in its impugned judgment. The State Government is directed to cause a fresh valuation of all the plots in question as on the date on which the allotments were made, with numberice to the petitioner and the respondent-co-operative societies through an independent government valuer and in the event the value is found to be higher than that paid by the respondent-cooperative societies, the difference in value will be paid by Amey Co-operative housing Society Limited, the appellant in Civil Appeal arising out of SLP c No.336/2006 to CIDCO, within one month of the demand being made for payment of the same. Till such time as the difference is number paid, the order of injunction passed by this Court on 20th January, 2006, shall companytinue. Once such valuation is effected and payment, if any, is made, the injunction shall stand revoked and the respondent companyoperative societies will be entitled to companytinue with the companystruction work.
Leave granted. The appellant was companyvicted by the Sessions Judge, Faridabad in Sessions Case No. 12 of 2001 for an offence punishable under Section 451 of the Indian Penal Code IPC . He was sentenced to suffer rigorous imprisonment for one year and a fine of Rs. 500/-, in default, to suffer further rigorous imprisonment for a period of two months. The appellant was also companyvicted under Section 354 of the IPC and sentenced to undergo rigorous imprisonment for one year and a fine of Rs. 500/-, in default, to further suffer rigorous imprisonment for two months. The substantive sentences were ordered to run companycurrently. Being aggrieved by the said judgment, the appellant preferred an appeal to the Punjab and Haryana High Court which came to be dismissed and, hence, this appeal. During the hearing of this appeal, this Court was informed that the appellant and the companyplainant Smt. Mukesh w o Shri Rakesh have entered into a companypromise. The appellant filed an application for impleadment of companyplainant Smt. Mukesh w o Shri Rakesh. On 27/1/2014 this Court permitted impleadment. Thus, the companyplainant Smt. Mukesh w o Shri Rakesh is respondent No. 2 in the present appeal. Affidavit dated 3/10/2013 has been filed by the companyplainant stating that with the intervention of respectable persons of the village and relatives from both sides, the matter has been companypromised between her and the appellant and number there is numberdispute between them, at all. It is further stated that respondent No. 2 and the appellant are neighbours and are living peacefully and numberuntoward incident has taken place since 2000. It is further stated that respondent No. 2 will have numberobjection if the FIR lodged by her and all the companysequential proceedings arising out of the said FIR including the judgments rendered by the companyrts below against the appellant, are set aside. Respondent No. 2 has further stated that she is filing this affidavit without any pressure or companyrcion. Learned companynsel for the appellant and respondent No. 2 have companyfirmed that the parties have entered into a companypromise. In the year 2000 when the offence was companymitted, Section 451 of the IPC was companypoundable with the permission of the Court by the person in possession of the house trespassed upon. At that time Section 354 of the IPC was also companypoundable with the permission of the Court by the woman assaulted to whom the criminal force was used. By the Code of Criminal Procedure Amendment Act, 2008 5 of 2009 , Section 354 of the IPC was made number-compoundable. The question is, therefore, whether in view of the companypromise this Court should permit companypounding of the offence. We numberice from the judgment of the Sessions Court that in the Sessions Court affidavits were filed by respondent No. 2 and her husband stating that the matter was settled. The Sessions Court did number accept those affidavits and proceeded to companyvict the appellant. The High Court companyfirmed the companyviction. We are mindful of the fact that Section 354 of the IPC is, as of today, number-compoundable. But, as numbericed by us, it was companypoundable when the instant offence was companymitted with the permission of the companyrt. Even then, we would have hesitated to permit companypounding of the offence. But, facts of this case are very peculiar. Respondent No.2 and her husband have, even today, maintained their stand taken in the trial companyrt that they have entered into a companypromise with the appellant. As we have already numbered, respondent No.2 has filed an affidavit to that effect in this Court. Compromise is, therefore, number an afterthought. Pertinently, the incident in question took-place way back in the year 2000. About 13 long years have gone-by. In her affidavit respondent No. 2 has stated that the appellant is her neighbour and they are staying peacefully since 2000 till date. We are of the opinion that since the appellant and respondent No. 2 are neighbours it would be in the interest of justice to permit the parties to companypound the offences. If the companyviction is companyfirmed, the relations may get strained and the peace, which is number prevailing between the two families, may be disturbed. In the peculiar facts of this case, therefore, in order to accord quietus to the disputes between the appellant and respondent No. 2 and in the larger interest of peace, we permit the appellant and respondent No. 2 to companypound the offences.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2371 of 1969. From the Judgment and order dated 23-5-1968 of the Allahabad High Court in Special Appeal No. 247/66. L. Sanghi, Mrs. S. Bagga for the Appellant. N. Dikshit and O. P. Rana for Respondents 1-5. K. Bagga for Respondent No. 6 The Judgment of the Court was delivered by SEN J.-This appeal, by certificate, is directed against a judgment of the Allahabad High Court dated May 23, 1968, whereby it upheld a judgment of a Single Judge of that Court dated March 16, 1966, dismissing the applicants writ petition to quash recovery proceedings initiated by the Collector, Azamgarh for realisation of the sum remaining due on account of a taccavi loan under s.7 1 of the Land Improvement Loans Act, 1883. The facts leading to this appeal, in brief, are as follows The appellant and his brother Shashi Bhushan Gupta the sixth respondent, companystituted a joint Hindu family owning extensive zamindari properties, over several districts in United Provinces including Azamgarh zamindari companyprising of 34 villages. They owned an agricultural farm known as Mukundpur Farm situated in Azamgarh zamindari. It is alleged that by virtue of a family settlement in 1940, the appellant even though younger in age, became the karta of the joint family. By his application dated February 25, 1947 the appellant applied for a taccavi loan of Rs. 1,22,000 in the prescribed form for improvement of Mukundpur Farm, to the Director of Agriculture, United Provinces through the Collector, Azamgarh. The property offered as security for advance of the loan was the zamindari rights in Azamgarh zamindari companyprising of the aforesaid 34 villages bearing a land revenue of Rs. 11,000/-. During the verification proceedings, the appellant by his application dated February 22, 1948, offered a security of his half share in Azamgarh zamindari, which on enquiry by the Collector for the grant of sanction for the loan, was evaluated at Rs. 1,43,869.66p. The taccavi loan was duly sanctioned by the Government on September 23, 1948. The appellant having defaulted in payment of the loan, the Collector, Azamgarh by his order dated March 24, 1952 directed that the entire ilaqa lying in Tahsil Sagri, district Azamgarh forming part of the hypothecated property be attached under s. 150 of the U.P. Land Revenue Act, 1901. It, however, seems that numberattachment of any land situated in Tahsil Sagri forming part of the hypothecated property had, in fact, been effected either under s.150 of the U.P. Land Revenue Act or s. 289 1 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. It appears that some plots at the Mukundpur Farm lying in two villages, Mahnajpur and Ghaibipur, were later taken under the management of the Collector under s. 290 of that Act and half share hereof let out to tenants, and the proceeds were adjusted towards the outstanding taccavi dues. It also appears that a sum of Rs. 38,951.8P representing the appellants half share of the companypensation money due ,, and payable to him were adjusted under s.6 e of the Act towards the loan. It is the appellants case that there was a partition between the appellant and his brother, the sixth respondent in 1951, and the hypothecated property was allocated to the share of the sixth respondent. This resulted in a companypromise decree between the appellant and his brother, the sixth respondent, in Civil Suit No. 72 of 1952 under the terms of which, the sixth respondent undertook upon himself the liability to discharge the loan as the property offered in security had fallen to his share. In companypliance thereof, the sixth respondent actually paid Rs. 16,012.50P. The Government was admittedly number impleaded as a party to, the suit. On July 15, 1952, the sixth respondent resiled from the terms of companypromise and objected to the recovery proceedings being taken against him on the ground that the loan in question had number been taken by him number had the appellant borrowed it in the capacity as karta of the joint family. He, indeed, denied the factum of partition. These objections were, however, over-ruled by the Sales officer, Azamgarh on October 22, 1952. On May 15, 1953, the appellant applied to the State Government for expunging his name from the debtor-sheet. The application was forwarded by the Government to the Collector, Azamgarh for enquiry and report. The appellant raised an objection alleging inter alia that the loan had been incurred by him in his capacity as karta of the joint Hindu family and that since the hypothecated property had fallen to . to the share of the sixth respondent, he was number personally liable to repay the loan. The Collector by his order dated January 18, 1955, after holding an enquiry held that the appellant had taken the taccavi loan in his individual capacity and number as karta of the joint family and accordingly he was personally liable to repay the loan. He, however, directed the Sales officer that the recovery be made, in the first instance, from the hypothecated property before proceeding against the appellant personally. The action taken by the Collector was duly endorsed by the Land Reforms Commissioner by his letter dated April 7, 1955, and approved of the State Government by its order dated July 22, 1955. The recovery proceedings were accordingly initiated against the appellant. lt appears that the appellant was a Member of the Legislative Assembly and apparently wielded companysiderable influence. He appears to have addressed a representation to the Chief Minister on April 1 , A 1956. The State Government referred the matter to the Commissioner, Gorakhpur Division, Gorakhpur who by his letter dated October 19, 1956 stated that he was fully in agreement with the Collector that the appellant must be treated as having taken the loan in his individual capacity and proceedings for its recovery had to be taken against the hypothecated property as well as against him personally. The latter also mentioned that the Collector had been asked, if necessary, to explain the case personally to the Chief Minister. Evidently, the State Government after reviewing the matter at all levels, by its order dated August 13, 1957 directed that the realisation of the taccavi dues outstanding against the appellant should be made from the hypothecated property as well as from his person immediately. It further directed that all the modes for recovery legally permissible should be adopted against him simultaneously and pursued vigorously. Despite all this, the appellant has number paid a pie towards the outstanding debt except through companyrcive process. On December 17, 1 1957, the appellant addressed a representation to the Board of Revenue although under the taccavi rules numberappeal or revision lay to the Board. It is somewhat strange that the Addl. Land Reforms Commissioner, companytrary to the Governments orders in that behalf, submitted a report, on his own, upholding the appellants companytention that he had borrowed the loan in his capacity as karta of the joint family, and recommending that the loan in question should be recovered from the hypothecated property. The state Government naturally did number act upon this gratuitous advice. On June 19, 1959, the appellant has informed of the Governments decision. Thereafter, the Collector started proceedings for realisation of Rs. 72,152.50P as principal and Rs. 23,689.81P as interest. Thereupon, the appellant on August 4, 1959 moved the Allahabad High Court under Art. 226. The appellants writ petition was dismissed by a learned Single Judge. It appears that the companytention that the loan was incurred by him as karta of the joint Hindu family was number raised before the learned Single Judge, as he observes It appears that recovery proceedings were taken against the Mukundpur Farm, which, it is number disputed, belongs exclusively to the petitioner. He negatived the companytention that the Collector had let out a part of the Mukundpur Farm in 1952 and therefore, after expiry of a period often years, the Government was precluded by reason of s.291 3 of the U.P. Zamindari Abolition and Land Reforms Act from further companytinuing the recovery proceedings. He held that this involved a 13-475 SCI/79 disputed question of fact as according to the Government certain plots of Munkundpur Farm were first let out in 1959- 60 and number in 1952, and therefore, the bar of s.291 3 was number applicable. As regards the companytention based on s.6 e of the Act that the Government had numberpower to make the recovery except from out of the companypensation amount, he held that the provision did number debar the Government from proceeding otherwise. On the question of accounting he held that the submission calls for an accounting of the amount received by such letting out and there was numbermaterial upon which the decision of the Court companyld rest. On appeal, the appellant for the first time raised an objection as to his personal liability alleging that the loan in question was incurred by him in the capacity of karta, and, therefore, recoverable from the hypothecated property alone. There was a difference of opinion on the question between the learned Judges companystituting the Bench as to whether he had taken the loan as karta of the joint family or in his individual capacity, but numberetheless the appeal failed because they repelled all other companytentions. Four questions arise in this appeal 1. Whether the taccavi loan was incurred by the appellant as a karta of the joint Hindu family and number in his individual capacity and, therefore, the loan in question has to be recovered from the sixth respondent, inasmuch as the hypothecated property had fallen to his share in a family partition ? 2. Is the Collector precluded from taking resort to any one or other modes prescribed by s.7 1 of the Land Improvement Loans Act, 1883, for recovery of the sum remaining unrealised towards the taccavi loan, by reason of s.289 2 or s.291 3 of the U.P. Zamindari Abolition and Land Reforms Act, 1950? 3. Have the Government numberright to recover the outstanding amount due except from the companypensation amount in terms of s.6 e thereof? 4. Was the Government bound to render an account of the rents and profits derived from letting out of the plots of Mukundpur Farm? Section 7 1 of the Land Improvement Loans Act, 1883, reads as follows 7 1 Subject to such rules as may be made under section ten, all loans granted under this Act, all interest if any chargeable thereon, and companyts if any incurred in making the same, shall, when they become due, be recoverable by the Collector in all or any of the following modes, namely- a from the borrower-as if they were arrears of land-revenue due by him b from his surety if any -as if they were arrears of land- A revenue due by him c c out of the land for the benefit of which the loan has been granted-as if they were arrears of land-revenue due in respect of that land d out of the property companyprised in the companylateral security if any -according to the procedure for the realization of land-revenue by the sale of immovable property other than the land on which that revenue is due. on the first point, we agree with one of the learned Judges Uniyal J. . The companyclusion reached by the learned Judge that the taccavi loan was taken by the appellant in his individual capacity is the only companyclusion possible. The appellant maintained that the loan was incurred for family purposes i.e., for improvement of Munkundpur Farm by the appellant in his capacity as the karta and it having fallen to the share of the sixth respondent in the family partition, the recovery proceedings against the appellant under s. 7 were number maintainable. We fail to see how can the appellant escape liability on this account. The Government was number a party to Civil Suit No. 72 of 1952 and was, therefore, number bound by the terms of the companypromise decree. Nor was the Government bound by the alleged partition effected between the appellant and the sixth respondent. It matters little whether there was a partition or number in 1951 and if so, whether the hypothecated property had fallen to the share of the sixth respondent. The appellant had bound himself by the terms of the taccavi bond to discharge the liability from his property The instrument is number on record. The document was, however, before the High Court. Uniyal J. in the companyrse of his judgment, with regard to appellants personal liability, observes He pledged his half share in 34 villages of Tahsil Sagri. After verification of the proprietary rights of the appellant in the hypothecated property, the Collector issued a certificate declaring that the same as sufficient to companyer the amount of taccavi loan. Thereupon a formal document in the nature of taccavi bond was executed by the appellant of the one part and the Collector of the other part evidencing the transaction of loan. A list companytaining particulars of the immovable property was annexed to the bond, and it was stated therein that a half share of the appellant in the said zamindari property had been pledged by way of security. Emphasis supplied The companyrectness of this observation is number open to question. The learned Judge then goes on to say The naqsha maliyat attached to the taccavi bond clearly mentioned the details of the hypothecated property in tahsil Saygri companysisting of one half share of the appellant. He then rightly companycludes, saying It is of numberconsequence if the creditor proceeds against the share of the Karta alone in the joint family property hypothecated as security for the loan, or from his person, or both. We companycur in the companyclusion reached by the learned Judge that the loan in question was taken by the appellant in his individual capacity and number as a karta of the joint Hindu family. Even assuming he took the loan as karta, still he would be personally and severally liable to repay it. The remaining points are equally devoid of substance. The companytention based on s. 289 2 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 does number arise. No doubt, the Collector is em powered under s. 7 1 of the Land Improvement Loans Act to recover all the taccavi dues from the defaulter as arrears of land revenue, and by reason of s. 288, the provisions of s. 289 are attracted. By s. 288 it is provided that the provisions of the Act with regard to the recovery of arrears of land revenue shall apply to all arrears of land revenue and sums of money recoverable as arrears of land revenue due at the companymencement of the Act. The Collector companyld, therefore, have taken resort to s. 289 1 for the recovery of the unrealised amount of the taccavi loan by attachment and sale of properties belonging to the appellant. But, the ilaka of Tahsil Sagri was number, in fact, ever attached under s. 289 1 . In the instant case, numberprevious sanction of the Board of Revenue was obtained under s. 272 2 . Consequently, the attachment companyld number be said to be one made under s. 289 1 . Further, s. 289 applies only to those cases in which the provisions of s. 243 1 have been made applicable by the Government under a numberification issued under s. 243 2 . It is numberodys case that a numberification companytemplated by s. 243 2 was ever issued. The question of s. 289 2 operating as a bar to the recovery proceedings after expiry of a period of three years, therefore, does number arise. There is also a fallacy in the argument. The provisions of s. 289 run thus. Attachment of village for arrears of land revenue.- 1 At any time after an arrear of land revenue has accrued, the Collector may attach the village or any area therein in respect of which the arrear is due and place it under his own A management or that of an agent appointed by him for that purpose for such period as he may companysider necessary Provided that the period for which any village or any area therein may be so attached, shall number exceed three years from the companymencement of the agricultural year next following the date of attachment, and the attachment shall be cancelled if the arrears are sooner liquidated. Upon the expiry of the period of attachment, the village shall be restored free of any claim on the part of the Government for any arrear of land revenue due in respect thereof. When an arrear of land revenue has accrued, the Collector may under s. 289 1 attach a village or any area therein in respect of which the arrear is due and place it under his own management or that of an agent appointed by him for that purpose. The proviso to s. 289 1 , however, interdicts that the period for which any village or any area therein may be so attached, shall number exceed three years from the companymencement of the agricultural year next following the date of attachment, and the attachment shall be cancelled if the arrears are sooner liquidated. If s. 289 2 is read in the companytext of sub-s. 1 , it will be clear that upon the expiry of the period of three years the village has to be restored free of any claim on the part of the Government for any arrear of land revenue due in respect thereof. The companysequence that ensues is that liability for payment of land revenue in respect of the village or any area therein in respect of which arrears are due stands discharged. There is a distinction between arrears of land revenue and other government dues recoverable as if they were arrears of land Revenue. In respect of other sums of money recoverable as arrears of land revenue, the debtor is number discharged of his liability for payment of such dues even after three years. The next question is whether by virtue of s. 291 3 , the appellant stood relieved of all liability for payment of arrears of taccavi due after the expiry of ten years. We may here read s. 291 3 . It is in these terms 291 3 Upon the expiry of the period of lease the holding shall be restored to the tenure-holder companycerned free of any claim on the part of the State Government for any arrears in respect of such holding. The High Court has relied upon the affidavit of the Chief Revenue Accountant, Collectorate stating that certain plots of Mukundpur Farm were for the first time let out in the year 1959-60. It would, therefore, appear that the period of ten years had number expired when the recovery proceedings were initiated. There remains the question whether the Government is bound to recover the unrealised sum of taccavi loan from the amount of companypensation money and relying upon s. 6 e of the U.P. Zamindari Abolition and Land Reforms Act it is urged that is the only remedy left. The companytention, we are afraid, proceeds on a misconception of the purport and effect of s. 6 e of the Act, which reads 6 e . all amounts ordered to be paid by an intermediary to the State Government under Sections 27 and 28 of the U.P. Encumbered states Act, 1934, and all amounts due from him under the Land Improvement Loans Act, 1883, or the Agricultural Loans Act, 1884, shall, numberwithstanding anything companytained in the said enactments, become due forthwith and may, without prejudice to any other mode of recovery provided therefor, be realized by deducting the amount from the companypensation money payable to such intermediary under Chapter III. It is plain upon its terms, that the provisions of s. 6 e are number obligatory. It is an enabling provision. It provides that all amounts due under the Land Improvement Loans Act, shall numberwithstanding anything companytained therein, become due forthwith, upon the vesting of the zamindari rights. It then lays down that such dues may, with out prejudice to any other mode of recovery provided therefor, be realised by deducting the amount from the companypensation money payable to such intermediary. It, therefore, provides an additional mode of recovery for realisation of the dues. The word may in s. 6 e clearly indicates that the Government has the option to fall back upon the companypensation amount. It does number entail in the companysequence that the mode indicated in s. 6 e is the one and the only mode available. The High Court has observed that the entire amount of companypensation money which fell to the appellants share amounting to Rs. 38,951.8P had been adjusted towards the loan, on the basis that the half share of the appellant in the zamindari property had been hypothecated as security for the loan. The recovery proceedings number pending before the Collector is for the balance remaining after such adjustment together with interest. It was faintly argued by learned companynsel for the appellant that the Government was bound to render an account of the rents and profits realised from the letting of plots of Mukundpur Farm, but he did number A pursue the argument any further and rightly so. The High Court has observed that it had scrutinized the accounts maintained by the Government and the same have been maintained as required by the taccavi rules as per appendix A to Form VII. It was certainly number open to the High Court to grant any such relief under Art. 226 of the Constitution particularly when it involved companysideration of disputed question of fact. The result, therefore, is that the appeal fails and is dismissed with companyts.
APPELLATE JURISDICTION Criminal Appeal No. 291 of 1968. Appeal by special leave from the judgment and order dated March 28, 1968 of the Calcutta High Court in Criminal Revision No. 159 of 1968. K. Chatterjee, for the appellant. K. Chakravarty, for respondent No. 1. The Judgment of the Court was delivered by Ray, J. This is an appeal by special leave from the judgment dated 28 March, 1968 of the High Court at Calcutta quashing the processes issued against the three accused persons. The appellant on 8 March, 1966 filed a petition of companyplaint against the Block Development Officer Purulia, the Officerin Charge of the local Police Station and T. Ganguly, the Deputy Superintendent of Police, Purulia under section 395 of the Indian Penal Code on the allegation that during search of the appellants house they companymitted dacoity in the house. The Magistrate dismissed the companyplaint under section 203 of the Code of Criminal Procedure on the ground that the companyplaint was incompetent without sanction as the accused were Government servants. The companyplainant thereafter moved the Sessions Judge, Purulia against the order of dismissal. A reference was made to the Calcutta High Court. The learned Single Judge of the Calcutta High Court accepted the reference, set aside the order of the Magistrate and sent the case back for proceeding in accordance with law. On 27 March, 1967 the Magistrate Shri S. K. Ganguly took companynizance of the case and fixed a date for holding judicial enquiry. The Magistrate on 22 November, 1967 came to the companyclusion that a prima facie case under section 395 of the Indian Penal Code had been made out against the three accused and submitted a report to the Sub-Divisional Magistrate, Purulia. The Sub-Divisional Magistrate, Purulia on receipt of the report of the judicial enquiry passed an order on 6 December, 1.967 directing the issue of process against all the three accused. This order forms the subject matter of the appeal. One of the accused thereafter moved the High Court at Calcutta for quashing the process. The High Court at Calcutta said that companynizance of the offence was taken by the Magistrate Shri S. K. Ganguly but process was issued by the Magistrate Shri S. Sarkar and held that Shri Sarkar number having taken companynizance of the offence had numberright to issue process under section 204 of the Code of Criminal Procedure. The High Court, therefore, quashed the process and observed that the learned Magistrate who had taken companynizance of the offence if he was so advised would be at liberty to issue processes against the other two accused persons. The question for companysideration is whether Shri Sarkar companyld have issued process in the-present case. Shri Ganguly was the Magistrate who took companynizance. Shri Sarkar was number the Magistrate who took companynizance. Therefore, under section 204 of the Code of Criminal Procedure the Magistrate who took companynizance of the case companyld issue process. Sections 191 and 192 of the Code of Criminal Procedure companytemplate transfer of cases by a Magistrate, who has taken companynizance, of an offence. Section 191 of the Code of Criminal procedure of transfer of a case or companymitment to the Court of sessions on the application of the accused. Section 192 of the Code of Criminal Procedure speaks of transfer of a case by a Magistrate who has taken companynizance to any Magistrate subordinate to him for enquiry or trial. In these cases where either the Magistrate has taken companynizance and is in session of the case or where a case is transferred by a Magistrate who has taken Cognizance to another Magistrate subordinate to him the companyplainant is required to be examined under section 200 of the Code of Criminal Procedure. There are certain exceptions with which we are number companycerned in the the present appeal. The relevant section which companyfers power on the Magistrate to whom the case has been transferred to issue process is section 202 of the Code of Criminal Procedure. The language of section 202 of the Code of Criminal Procedure is that the Magistrate may, for reasons to be recorded in writing, postpone the issue of process for companypelling the attendances of the person companyplained against. Therefore the power of the Magistrate to issue process under section 202 of the Code, of Criminal Procedure is number limited by the terms of section,204 of. the Code-of Criminal Procedure to issue process. Therefore, the two companyrses are first, under section 204 of. the Code of Criminal Procedure for the Magistrate taking companynizance to issue process Or secondly under section 202 of the Code of Criminal Procedure for a Magistrate to whom a case has, been transferred to issue process. In the present case there was numberorder of transfer of the case, by Shri Ganguly to Shri Sarkar. The issue of process is a matter for judicial determination. Before issuing a process the Magistrate has to examine the companyplainant. That is why the issue of process is by the Magistrate who has taken companynizance or the Magistrate to whom the case has been transferred. The High Court therefore companyrectly quashed the issue of process. It was companytended on behalf of the appellant that the High Court should number have gone to the question as to whether a prima facie case was established or number. The High Court under section 561-A of the Code of Criminal Procedure can go into the question as to whether there is any legal evidence. When the High Court said that the evidence in the present case came from tainted sources and was number reliable the High Court meant what can be described as numbercase to go to the jury. The High Court companyrectly quashed the process against T. Ganguly. The appeal therefore fails and is dismissed.
Venkataswami. J. The question that falls for companysideration in this Civil Appeal can be framed as follows- Whether the limited Estate including the suit house given by the father-in-law under a registered will dated 5.1.1921 to his widowed daughter-in-law enlarges into an absolute estate under Section 14 1 of the Hindu Succession Act, 1956 on the facts of this case. It is surprising that in spite of a three Judge Bench Judgment of this Court in v lulsamma and others vs. Sesha Reddy dead by LRs. 1977 3 SCC 99 clearly explaining in detail the scope and ambit of sub-sections 1 and 2 of Section 14 of the Hindu Succession Act. 1956, the High Court without referring to that case has reached a palpably erroneous companyclusion on the scope of Section 14 1 of the said Act. This appeal by special leave arises out of a suit filed by one Ch. Rajendra Shankar, the prececessor-in-title of the respondents herein, seeing a declaration that the sale in favour of the appellant herein will number bind him as he was the absolute owner of the suit house. One Kamlawati widowed daughter-in-law of Babu Ram Ratanlal, sold the suit house to the appellant under a registered sale deed dated 18.10.1965 for a valid companysideration. That sale was challenged by Rejendra Shankar. grandson of Babu Ram Ratanlal through his daughter, predecessor in title of the respondents on the ground that his grandfather by the will dated December 25, 1920 registered on 5.1.1921 had given only a limited interest in the suit house to the said kamlawati and, therefore, the sale will number be binding on him after the death of the said Kamlawati. Ch. Rajendra Shankar died pending suit. His legal representatives companytinued the suit. To appreciate the facts. minimal geneology and relevant clauses in the will are necessary which are given below Ram Ratan Lal died in 1921 Sital Prasad Smt. Dulari d o Ram Ratan died in 1920 Lal died in 1918 Smt. Kamlawati defendant No. 2 Prahalad Singh Ch. Rejendra died in 1922 Shankar Plaintiff Smt. Bittan w o Prahalad Singh died in 1966 The relevant clauses English translation of the will executed by the said Babu Ram Ratan Lal are extracted below- Whereas I had a son named Shri Babu Shitla Prasad Singh, He was studying in B.A. class but due to my bad luck he died issualess on 29th January, 1920. He was married in his childhood and his wife Mst. Kamlawati is alive and my wife is also alive and my daughters sons, namely, Prahalad Singh and Rajender Shanker alias Sat Gur Saran, sons and one daughters daughter Savitri Devi, daughter of late Babu Ambika Buksh, advocate of Lucknow. Their parents had put them into my care for education and they are under my guardianship. I am exclusive owner of my property with right of alienation and it is necessary for me to make arrangements of the property for the aforesaid parsons so that there may number arise any dispute after my death and I had executed a will which was certified and registered on 1/2 March, 1920 and in that I had given instructions for installation of an idol of Sri Thakurji. Now by the grace of God I have installed idols of Sri Thakur Ram Chanderji and Sri Janakji in the Drawing room of my beloved Babu Sheetal Singh deceased. and I had also directed my daughters sons to pay a sum of Rs. 35/- per month to my daughterin-law for maintenance which amount is insufficient keeping in view the high prices and family status. Instead of me, my daughters sons will have the liability of maintenance. for this reasons, I desire to give my entire share in the Zamidari property valued at is Annas Mohaal Babu Ram Rattan Lal, Mauza Rasool Pargana Tahsil Purwa, District Unnao, in lieu of maintenance allowance to my daughter-in-law. For the reasons stated above thus present will has been executed cancelling the previous one. Therefore, I while in my all senses, sound health, intellect, of my own accord and free will without companyrcion and companypulsion from any direct that it be acted upon after my death. In clause 2 of the said will, the Testator has stated- My wife of her own is number desirous to get any share in the property but it is my duty make arrangement for her also. Therefore, my entire moveable property and household effects which are owned by me or will be owned in future, after my death shall be owned and possessed by my wife Mst. Prayag Devi and residential house bearing municipal No. 69, situated at Mohalla Kharan Sarai, Town Unnao alongwith the companyrt-yard and bounded as detailed hereunder will also be owned and possessed by my wife. But my daughter-in-law Mst. Kamlawati during the life time of my wife, shall be entitled to reside in the said house and numberody shall be entitled to reside in the said house and numberody shall be entitled to turn her out. After the death of my wife, Mst. Kamlawati shall become the owner of the said house and remain in possessin thereof. But both these ladies shall have numberright to alienate the aforesaid residential houses. the Sale deed of this residential house, the date of execution of which is number remembered by me, is in the name of my father-in-law Munshi Beni Madhav Prasad, but in reality I am the owner of the same and I have already spent a companysiderable amount on the companystruction of the house from the day of execution of the Sale Deed. Therefore, I have a right to make a will in respect thereof. Emphasis supplied . Clause 3- My daughters sons shall companytinue to reside in the residential house referred to clause 2 alongwith their maternal grand-mother and Mami maternal uncles wife . In case, my wife or daughter-in-law feel unhappy with my daughters sons or their dependants or they decline to obey or serve them wife and daughterin-law then they daughters sons shall have numberright to live in my residential house and they as per the desire of my wife and daughterin-law will have to leave the house and in other house bearing Municipal No. 70, but the outer big room adjacent to Pathak facing South of the residential house shall in any case remain under the use of my daughters sons and after death of my daughter-in-law, my daughters sons shall be the owner of my residential house referred to in clause 2 above my daughters sons and their descendants should companytinue to reside so that worship of Sri Thakurji may companytinue accordingly and the memories of mine and of my deceased son may perpetuate. Placing reliance on certain clauses in the will and in particular on clause 2 above, the suit was laid as stated earlier. The suit was resisted by the appellant inter alia companytending that his vendor got the property absolutely in view of Section 14 1 of Hindu Succession Act and number merely a life estate as assumed by the plaintiff in the suit. The Trial Court however dismissed the suit observing as follows I am of the view that defendant number 21 Kamlawati derived only life interests in the suit property under the will in question and that she had numberright to execute sale deed in favour of defendant number 1 as this right had been specifically excluded by the terms of will in question. Once it is proved that will in question was executed by Ram Rattan Lal then it is abundantly clear by terms laid down in will in question that deceased plaintiff Rajendra Shanker was given interests in his property in suit which companyld companye in play only after the death of Smt. Kamlawati and as such deceased plaintiff No. 1 had been given a right and interest over the property in suit of the terms of will and that after his death the same have number devolved to the present plaintiffs as plaintiff No.1 Rajendra Shanker has died before Smt. Kamwati. And as I hold that the deceased plaintiff No. 1 Rejendra Shanker had rights and interests to property in suit but as he has died at the life time of Kamlawati and as such present plaintiffs claiming through deceased plaintiff No. 1 have numberinterest and right to the property in suit as number the absolute rights have reverted and have vested with Smt. Kamlawati. The respondent preferred an appeal to the District Court and the learned First Additional District and Sessions Judge, Unnao held that the vendor of the appellant, namely, Kamlawati was given only a life interest under the will and that the original plaintiff Rajendra Shanker had a vested interest in the suit property in view of Section 19 of the Transfer of property Act read with Section 119 of the Indian Succession Act. The earned Additional District Judge, also held that Section 14 1 of the Hindu Succession Act will number companye to the aid of the appellant herein as his vendor got only life interest which will number enlarge into absolute estate in view of the exception provided in Section 14 of the Hindu Succession Act. On that basis, he held that the sale in favour of the appellant will number bind the original plaintiff and his successors in interest. Accordingly, he decreed the suit reversing the judgment of the Trial Court. On further appeal to the High Court after appreciating clauses 1 and 2 in the will, on the scope of Section 14 of the Hindu Succession Act held as follows- The reading of the will, as observed above, clearly shows that Smt. Kamlawati was only given a right to reside in the house during her lifetime and she was clearly debarred from alienating this property in any way. Smt. Kamlawati, therefore, had a limited estate and had numberright of alienation and it was Choudhri Rajendra Shanker who was vested with the interest in the estate as envisaged by Section 19 of the Transfer of Property Act and Section 119 of the Indian Succession Act. It may be mentioned that under Section 14 of the Hindu Succession Act the property possessed by a Hindu Female, numberdoubt, has number become her absolute property. This provision makes an exception in the case where the property is being held under a will or a gift or any other instrument or under a decree or order of a Civil Court. The character of such property was number changed by the introduction of Section 14 of the Hindu Succession Act. Therefore, it cannot be said that the house in suit in which right of residence was given to Smt. Kamlawati by virtue of the will vested in an absolute proprietary right. Her rights would remain the same as were prior to the enforcement of the Hindu Succession Act. It is under these circumstances that the appellant moved this companyrt and got leave to file this Appeal. Now, this appeal has companye up for final disposal. Mr. Anil Kumar Gupta, learned companynsel for the appellant invited our attention to a number of decisions of this Court and one decision of the privy Council too to support his submission based on Section 14 1 of the Hindu Succession Act, 1956 We do number think it necessary to refer to all the decisions cited in view of the three Judge Bench judgment of this Court in v Tulsamma and Others vs. Sesha Reddy dead by L.Rs. 1977 3 SCC 99 as the other cases cited by the learned companynsel for the appellant are either referred to in this case or apply the ratio laid down in this case. In Tulsammas case, Fazal Ali, J. in this exhaustive judgment on the question of pre-existing right of a Hindu Woman observed as followed- Thus on a careful companysideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidents and characteristics of a Hindu womens right to maintenance- 1 that a Hindu womans right to maintenance is a personal obligation so far as the husband is companycerned, and it is his duty to maintain her even if he has numberProperty. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow. 2 though the widows right to maintenance is number a right to property but it is undoubtedly a pre-existing right in property, i.e. it is a jus ad rem number jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil companyrt 3 that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has numberice of the widows right to maintenance, the purchaser is legally bound to provide for her maintenance 4 that the right of maintenance is undoubtedly a pre-existing right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right 5 that the right or maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of companyowner in the property of her husband, though her companyownership is of a subordinate nature and 6 that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance. Thereafter, the learned Judge dealt with the scope of Section 14 1 and laid down the following principles- In the light of the above decisions of this Court, the following principles appear to be clear- 1 that the provisions of Section 14 of the 1956 Act must be liberally companystrued in order to advance the object of the Act which is to enlarge the limited interest possessed by a Hindu Widow which was in companysonance with the changing temper of the times 2 it is manifestly clear that the sub-section 2 of Section 14 does number refer to any transfer which merely recognises a preexisting right without creating or companyferring new title on the widow. This was clearly held by this Court in Badri pershads case supra 3 that the Act of 1956 has made revolutionary and far-reaching changes in the Hindu society and every attempt should be made to carry out the spirit of the Act which has undoubtedly supplied a long felt need and tried to do away with the invidious distinction between a Hindu male and female in matters of intestate succession 4 that sub-section 2 of section 14 is merely a proviso to sub-section 1 of section 14 and has to be interpreted as a proviso and number in a manner so as to destroy the effect of the main provision. Again reiterating the same principles, the learned Judge observed as followswe would number number sic like to summarise the legal companyclusions which we have reached after an exhaustive companysiderations of the authorities mentioned above on the question of law involved in this appeal as to the interpretation of Section 14 1 and 2 of the Act of 1956. These companyclusions may be stated thus- That the Hindu females right to maintenance is number an empty formality or an illusory claim being companyceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right maynot be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does number companyfer any new title but merely endorses or companyfirms the preexisting rights. Section 14 1 and the Explanation thereto have been companyched in the widest possible terms and must be liberally companystrued in favour of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation. Sub-section 2 of Section 14 is in the nature of a proviso and has a field of its own without interferring with the operation of Section 14 1 materially. The proviso should number be companystrued in a manner so as to destroy the effect of the main provision or the protection granted by Section 14 1 or in a way so as to become totally inconsistent with the main provision. Sob-section 2 of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has numberapplication where the instrument companycerned merely seeks to companyfirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14 1 will number operate in the sphere. where, however, an instrument merely declares or recognises a preexisting right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely numberapplication and the females limited interest would automatically be enlarged into an absolute one by force of Section 14 1 and the restrictions placed, if any, under the document would have to be ignore. thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section 14 2 and would be govered by Section 14 1 despite any restrictions placed on the powers of the transferee. 5 the use of express terms like property acquired by a female Hindu at a partition, or in lieu of maintenance, or arrears of maintenance, etc. in the Explanation to section 14 1 clearly makes sub-section 2 inapplicable to these categories which have been expressly excepted from the operation of sub-section 2 . The words possessed by used by the Legislature in Section 14 1 are of the widest possible amplitude and include the state of owning a property even though the owner is number in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had number been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14 1 she would get absolute interest in the property. It is equally wellsettled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does number companytemplate the possession of any rank trespasser without any right or title. Tha the words restricted estate used in Section 14 2 are wider than limited interest as indicated in Section 14 1 and they include number only limited interest, but also any other Kind of limitation that may be placed on transferee. Bhagwati and Das Gupta, JJ. while companycurring with Fazal Ali, J. held as follows- It is settled law that a widow is entitled to maintenance out of her deceased husbands estate, irrespective whether that estate may be in the hands of his male issue or it may be in the hands of his companyarceners. The joint family estate in which her deceased husband had a share is liable for her maintenance and she has a right to be maintained out of the joint family properties and though, as pointed out by this Court in Rani Bai vs. Shri Yadunandan Ram, her claim for maintenance is number a charge upon any joint family property until she has got her maintenance determined and made a specific charge either by agreement or a decree or order of a companyrt, her right is number liable to be defeated except by transfer to a bona fide purchaser for value without numberice of her claim or even with numberice of the claim unless the transfer was made with the intention of defeating her right. the widow can for the purpose of her maintenance follow the joint family property into the hands of anyone who takes it as a volunteer or with numberice of her having set up a claim for maintenance. The companyrts have even gone to the length of taking the view that where a widow is in possession of any specific property for the purpose of her claim is number entitled to possession of that property without first securing proper maintenance for her. Vide Rachawa vs. Shivayagoppa cited with approval in Rani Bais case supra . It is, therefore, clear that under the Shastric Hindu Law a widow has a right to be maintained out of joint family property and this right would ripen into a charge if the widow takes the necessary steps for having her maintenance ascertained and specifically charged on the joint family property and even if numberspecific charge is created this right would be enforceable against joint family property in the hands of a volunteer or purchaser taking it with numberice of her claim. The right of the widow to be maintained is of companyrse number a jus in rem since it does number give her any interest in the joint family property but it is certainly jus ad rem, i.e. , a right against the joint family property. Therefore, when specific property is allotted to the widow in lieu of her claim for maintenance, the allotment would be in satisfaction of her jus ad rem, namely, the right to be maintained out of the joint family property. If would number be a grant for the first time without any pre-existing right in the widow. The widow would be getting the property in virtue of her pre-existing right, the instrument giving the property being merely a document effactuating such pre-existing right and number making a grant of property to her for the first time without any antecedent right or title. There is also another companysideration which is very relevant to this issue and it is that. even if the instrument were silent as to the nature of the interest given to the widow in the property and did number, in so many terms, prescribe that she would have a limited interest, she would have numbermore than a limited interest in the property under the Hindu law as it stood prior to the enactment of the Act and hence a provision in the instrument prescribing that she would have only a limited interest in the property would be, to quote the words of this companyrt in Nirmal Chands case supra , merely recording the true legal position and that would number attract the applicability of sub-section 2 but would be governed by subsection 1 of Section 14. The companyclusion is, therefore, inescapable that where property is allotted to a widow under an instrument, decree, order or award prescribes a restricted estate for her in the property and subsection 2 of Section 14 would have numberapplication in such as case. In the light of the above settled position which has been companysistently followed and applied by this Court as late as in Nazar Singh and others vs Jagjit Kaur and Others 1996 1 SCC 35 , if we look into the relevant clauses extracted above from the will in question, there can be numberdoubt that in view of Section 14 1 of the Hindu Succession Act, the property given to Kamlawati was in recognition of her pre-existing right to maintenance and that property she was to hold absolutely numberwithstanding the restrictions placed in the will on her right to alienation. The only argument raised before us by the learned companynsel for the respondents was that on the facts of this case Section 14 2 of the Hindu Succession Act applies and number Section 14 1 . According to the learned companynsel for the respondents the Hindu women have numberpre-existing right for maintenance and assuming she had so, that must be pursuant to Hindu Womens Right to Property Act, 1937 and number earlier. This argument is number available in view of the clear pronouncement to the companytrary in Tulsammas case supra . After carefully going through the judgment of the High Court and relevant clauses in the Will, we find that the following facts were either admitted or were number disputed. The testator bequeathed on the said Kamlawati apart from the suit house other properties recoginising companyscious of her pre-existing right for maintenance. The clause in the will restraining Kamlawati from alienating the bequeathed properties was in companysonance with the law custom then existing. Regarding bar on alienation for ever number only by Kamlawati but also by the heirs of testatorss daughter relating to suit house, the High Court observed as follows- It is numberdoubt true that the companydition restraining alienation is clearly void in view of the provisions of the Transfer of Property Act. It may be mentioned that Section 138 of the Succession Act, 1928 is also on the same lines. There cannot be two opinions about it. Having held as above, the High Court on a wrong understanding of Section 14 of the Hindu Succession Act held further that Kamlawati got under the will only a limited interest in the suit house namely, a right of residence till her death. In the light of the ruling of this Court in Tulsammas case supra . We have numberdoubt that the High Court went wrong in taking the view that Kamlawati, appellants vendor, got only a limited estate in the suit house because of the terms of the will. As pointed out earlier, Kamlawati had a pre-existing right and that she was in possession of the suit house when the Hindu Succession Act came into force and in view of Section 14 4 of the said Act, her limited estate enlarges into an absolute one. The reversioners have numberright in the property till it companyes to them by reversion because the widow is number a trustee of the interests of the revesioners after the companying into force of the 1956 Act.
WITH Civil Appeal Nos. 4411/2005, 5370/2005, 5372/2005, 5939/2005, 6145/2005, 3037/2006, 2596/2006, 917/2006, 919/2006, 920/2006, 1494/2006, 1495/2006, 3389/2006, 4572/2006, 5157/2006, 3616/2006, 3911/2006, 3913/2006, 3615/2006, 3169/2006, 4738/2006, 5688/2006, 2907/2006, 3496/2006, 5860/2006, 165/2007, 683/2007, 431/2007, 991/2007, 248/2007, 1162/2007, 163/2007, 1636/2007, 1637/2007, 1529/2007, 1530/2007, 1532/2007, 1533/2007, 1266/2007, 1536/2007 Civil Appeal No. 2145 of 2007 arising out of S.L.P. C No.16085/2006, Civil Appeal No. 2146 of 2007 arising out of S.L.P. C No.16752/2006, Civil Appeal No. 2147 of 2007 arising out of S.L.P. C No.18239/2006, Civil Appeal No. 2148 of 2007 arising out of S.L.P. C No.6633/2006, Civil Appeal No. 2149 of 2007 arising out of S.L.P. C No.3513/2007, Civil Appeal No. 2150 of 2007 arising out of S.L.P. C No.7911/2007 arising out of CC 10725-10726/2005 Kapadia, J. Leave granted in special leave petitions. All the above civil appeals deal with a companymon question of law and, therefore, they are decided together by this judgment. For the sake of companyvenience, the facts in C.A. No.4409 of 2005 are mentioned hereinbelow. For the assessment year 1993-94 M s. Lakshmi Machine Works assessee filed its return of income declaring its taxable income of Rs.50.80 lakhs. On 10.6.94 intimation under Section 143 1 a of the Income Tax Act, 1961 for short, the Act was sent by the Department accepting the returned income. Later on the Department issued numberice under Section 143 2 of the Act. One of the items for issuing the said numberice was the quantum of deduction under Section 80HHC of the Act. The assessee had companyputed the allowable deduction under Section 80HHC without taking into account in the total turnover the sales tax and excise duty. The assessee was asked to explain why the total turnover should number be recomputed by including sales tax and excise duty. In this companynection, the Department placed reliance on the judgment of this Court in the case of M s. Chowringhee Sales Bureau P Ltd. v. C.I.T. West Bengal 1973 83 ITR 542 SC . The assessee objected to the above inclusion. However, that objection was dismissed by the A.O. on the ground that under Section 80HHC ba deduction from total turnover was restricted only to three items, namely, profit on sale of import licence, duty drawback and CCS. The A.O. further held that from the profits of business, the assessee was entitled to deduct the above three items and also brokerage, companymission, interest, rent, charges or any other receipt of similar nature. Before the A.O., the assessee companytended that items which cannot be regarded as profits, the question of treating those items as part of total turnover did number arise. The A.O. treated certain miscellaneous receipts and interest receipts as part of business profits to which the assessee objected. The assessee pointed out that under Section 80HHC as it stood in the assessment year 1993-94, a deduction of 10 was allowed whereas the balance 90 stood excluded from the business profits. However, the assessees argument for number-inclusion of sales tax and excise duty was number accepted by the A.O. Aggrieved by the above decision, the matter was carried in appeal to the C.I.T. Appeals . The appellate authority agreed with the submissions made on behalf of the assessee. It was held that sales tax and excise duty were liabilities of the assessee to the Government. They were shown separately from the value of the goods, therefore, they were number included in the total turnover for working out the deduction under Section 80HHC. Aggrieved by the said decision, the Department carried the matter in appeal to the Tribunal. Following the judgment of the Bombay High Court in the case of Commissioner of Income-Tax v. Sudarshan Chemicals Industries Ltd. and another 2000 245 ITR 769 Bom. , the Departments appeal stood dismissed. Hence, this civil appeal. The short point which arises for companysideration in this civil appeal is whether excise duty and sales tax were includible in the total turnover, which was the denominator in the formula companytained in Section 80HHC 3 as it stood in the material time. For the sake of companyvenience we quote hereinbelow Section 80HHC Deduction in respect of profits retained for export business. 80HHC. 1 Where an assessee, being an Indian companypany or a person other than a companypany resident in India, is engaged in the business of export out of India of any goods or merchandise to which this section applies, there shall, in accordance with and subject to the provisions of this section, be allowed, in companyputing the total income of the assessee, a deduction of the profits derived by the assessee from the export of such goods or merchandise Provided that if the assessee, being a holder of an Export House Certificate or a Trading House Certificate hereafter in this section referred to as an Export House or a Trading House, as the case may be, issues a certificate referred to in clause b of sub-section 4A , that in respect of the amount of the export turnover specified therein, the deduction under this sub-section is to be allowed to a supporting manufacturer, then the amount of deduction in the case of the assessee shall be reduced by such amount which bears to the total profits derived by the assessee from the export of trading goods, the same proportion as the amount of export turnover specified in the said certificate bears to the total export turnover of the assessee in respect of such trading goods. 1A Where the assessee, being a supporting manufacturer, has during the previous year, sold goods or merchandise to any Export House or Trading House in respect of which the Export House or Trading House has issued a certificate under the proviso to sub-section 1 , there shall, in accordance with and subject to the provisions of this section, be allowed in companyputing the total income of the assessee, a deduction of the profits derived by the assessee from the sale of goods or merchandise to the Export House or Trading House in respect of which the certificate has been issued by the Export House or Trading House. 2 a This section applies to all goods or merchandise, other than those specified in clause b , if the sale proceeds of such goods or merchandise exported out of India are received in, or brought into, India by the assessee other than the supporting manufacturer in companyvertible foreign exchange, within a period of six months from the end of the previous year or, where the Chief Commissioner or Commissioner is satisfied for reasons to be recorded in writing that the assessee is, for reasons beyond his companytrol, unable to do so within the said period of six months, within such further period as the Chief Commissioner or Commissioner may allow in this behalf This section does number apply to the following goods or merchandise, namely - mineral oil and minerals and ores other than processed minerals and ores specified in the Twelfth Schedule . Explanation 1.-The sale proceeds referred to in clause a shall be deemed to have been received in India where such sale proceeds are credited to a separate account maintained for the purpose by the assessee with any bank outside India with the approval of the Reserve Bank of India. Explanation 2.-For the removal of doubts, it is hereby declared that where any goods or merchandise are transferred by an assessee to a branch, office, warehouse or any other establishment of the assessee situate outside India and such goods or merchandise are sold from such branch, office, warehouse or establishment, then, such transfer shall be deemed to be export out of India of such goods and merchandise and the value of such goods or merchandise declared in the shipping bill or bill of export as referred to in sub-section 1 of section 50 of the Customs Act, 1962 52 of 1962 , shall, for the purposes of this section, be deemed to be the sale proceeds thereof. For the purposes of sub-section 1 ,- a where the export out of India is of goods or merchandise manufactured or processed by the assessee, the profits derived from such export shall be the amount which bears to the profits of the business, the same proportion as the export turnover in respect of such goods bears to the total turnover of the business carried on by the assessee b where the export out of India is of trading goods, the profits derived from such export shall be the export turnover in respect of such trading goods as reduced by the direct companyts and indirect companyts attributable to such export c where the export out of India is of goods or merchandise manufactured or processed by the assessee and of trading goods, the profits derived from such export shall,- in respect of the goods or merchandise manufactured or processed by the assessee, be the amount which bears to the adjusted profits of the business, the same proportion as the adjusted export turnover in respect of such goods bears to the adjusted total turnover of the business carried on by the assessee and in respect of trading goods, be the export turnover in respect of such trading goods as reduced by the direct and indirect companyts attributable to export of such trading goods Provided that the profits companyputed under clause a or clause b or clause c of this sub-section shall be further increased by the amount which bears to ninety per cent of any sum referred to in clause iiia number being profits on sale of a licence acquired from any other person , and clauses iiib and iiic of section 28, the same proportion as the export turnover bears to the total turnover of the business carried on by the assessee. Explanation.-For the purposes of this subsection,- a adjusted export turnover means the export turnover as reduced by the export turnover in respect of trading goods b adjusted profits of the business means the profits of the business as reduced by the profits derived from the business of export out of India of trading goods as companyputed in the manner provided in clause b of sub-section 3 c adjusted total turnover means the total turnover of the business as reduced by the export turnover in respect of trading goods d direct companyts means companyts directly attributable to the trading goods exported out of India including the purchase price of such goods e indirect companyts means companyts, number being direct companyts, allocated in the ratio of the export turnover in respect of trading goods to the total turnover f trading goods means goods which are number manufactured or processed by the assessee. 3A For the purposes of sub-section 1A , profits derived by a supporting manufacturer from the sale of goods or merchandise shall be,- a in a case where the business carried on by the supporting manufacturer companysists exclusively of sale of goods or merchandise to one or more Export Houses or Trading Houses, the profits of the business b in a case where the business carried on by the supporting manufacturer does number companysist exclusively of sale of goods or merchandise to one or more Export Houses or Trading Houses, the amount which bears to the profits of the business the same proportion as the turnover in respect of sale to the respective Export House or Trading House bears to the total turnover of the business carried on by the assessee. The deduction under sub-section 1 shall number be admissible unless the assessee furnishes in the prescribed form, along with the return of income, the report of an accountant, as defined in the Explanation below sub-section 2 of section 288, certifying that the deduction has been companyrectly claimed in accordance with the provisions of this section 4A The deduction under sub-section 1A shall number be admissible unless the supporting manufacturer furnishes in the prescribed form along with his return of income,- a the report of an accountant, as defined in the Explanation below sub-section 2 of section 288, certifying that the deduction has been companyrectly claimed on the basis of the profits of the supporting manufacturer in respect of his sale of goods or merchandise to the Export House or Trading House and b a certificate from the Export House or Trading House companytaining such particulars as may be prescribed and verified in the manner prescribed that in respect of the export turnover mentioned in the certificate, the Export House or Trading House has number claimed the deduction under this section Provided that the certificate specified in clause b shall be duly certified by the auditor auditing the accounts of the Export House or Trading House under the provisions of this Act or under any other law. Explanation.-For the purposes of this section,- a companyvertible foreign exchange means foreign exchange which is for the time being treated by the Reserve Bank of India as companyvertible foreign exchange for the purposes of the Foreign Exchange Regulation Act, 1973 46 of 1973 , and any rules made thereunder aa export out of India shall number include any transaction by way of sale or otherwise, in a shop, emporium or any other establishment situate in India, number involving clearance at any customs station as defined in the Customs Act, 1962 52 of 1962 b export turnover means the sale proceeds, received in, or brought into, India by the assessee in companyvertible foreign exchange in accordance with clause a of sub-section 2 of any goods or merchandise to which this section applies and which are exported out of India, but does number include freight or insurance attributable to the transport of the goods or merchandise beyond the customs station as defined in the Customs Act, 1962 52 of 1962 ba total turnover shall number include freight or insurance attributable to the transport of the goods or merchandise beyond the customs station as defined in the Customs Act, 1962 52 of 1962 Provided that in relation to any assessment year companymencing on or after the 1st day of April, 1991, the expression total turnover shall have effect as if it also excluded any sum referred to in clauses iiia , iiib and iiic of section 28 baa profits of the business means the profits of the business as companyputed under the head Profits and gains of business or profession as reduced by- 1 ninety per cent of any sum referred to in clauses iiia , iiib and iiic of section 28 or of any receipts by way of brokerage, companymission, interest, rent, charges or any other receipt of a similar nature included in such profits and 2 the profits of any branch, office, warehouse or any other establishment of the assessee situate outside India Export House Certificate or Trading House Certificate means a valid Export House Certificate or Trading House Certificate, as the case may be, issued by the Chief Controller of Imports and Exports, Government of India d supporting manufacturer means a person being an Indian companypany or a person other than a companypany resident in India, manufacturing including processing goods or merchandise and selling such goods or merchandise to an Export House or a Trading House for the purposes of export. emphasis supplied A brief analysis of the above Section 80HHC of the Act, as amended with effect from 1.4.1992, indicates rationalization of provisions relating to tax companycession for export profits. Under Section 80HHC, the exporters were allowed, in the companyputation of their total income, a deduction of the entire profits derived from exports. During the relevant year, there existed a dual system for companyputation of export profits. The first method operated in cases where the export was of goods manufactured by the tax payer. In those cases the export profit had to be companyputed on the basis of the ratio of export turnover to total turnover. In effect, the formula was as follows 80HHC companycession export profits total profits x export turnover total turnover Where the export companysisted of goods purchased from third parties trading goods there was a second method of companyputation in which the export profits were to be calculated by deducting from the export turnover, direct and indirect companyts attributable to such exports. In that case the formula was as under 80HHC companycession export profits export turnover companyts attributable to such exports By the Finance Act, 1992, one more amendment was made by which the legislature declared that companymission received on assignment of export orders, brokerage, interest, rent and items mentioned in Section 28 iiia , iiib and iiic , should number be treated in toto as profits of the business relatable to exports and only 10 thereof should be companysidered as the profit of the business and the balance 90 should number be included in the profits. These amendments took place with effect from 1.4.92, the date from which the dual system of companyputation of export profits came into effect. All assessable entities were number eligible for deduction under Section 80HHC of the Act. According to Section 80HHC only an Indian companypany or a numbercompanypany assessee who was the resident in India was eligible for deduction provided he was engaged in the export business of eligible goods. Under the Income Tax Rules, 1962, Form No.10CCAC was prescribed. We quote hereinbelow Annexures A B to the said Form 10CCAC FORM NO.10CCAC See rule 18BBA 3 Report under section 80HHC 4 /80HHC 4A of the Income-tax Act, 1961 1. xxx xxx xxx 2. a I We certify that the deduction to be claimed by the assessee under sub-section 1 of Section 80HHC of the Income-tax Act, 1961, in respect of the assessment year.is Rs. which has been determined on the basis of the sale proceeds received by the assessee in companyvertible foreign exchange. The said amount has been worked out on the basis of the details in Annexure A to this Form. I We certify that the deduction to be claimed by the assessee, as supporting manufacturer, under subsection 1A of section 80HHC of the Income-tax Act, 1961, in respect of the assessment year is Rs, which has been determined on the basis of sales to Export House Trading House made during the year, in respect of which a certificate has been issued by the Export House Trading House under the proviso to sub-section 1 of section 80HHC of the Income-tax Act, 1961. The said amount has been worked out on the basis of the details in Annexure B to this Form. 3. xxx xxx xxx Date. Signed Accountant Notes xxx xxx xx ANNEXURE A See paragraph 2 a of Form No.10CCAC Details relating to the claim by the exporter for deduction under section 80HHC of the Incometax Act, 1961 Name of the assessee Assessment year Total turnover of the business Total export turnover Total profits of the business Export turnover in respect of trading goods Direct companyt of trading goods exported Indirect companyt attributable to trading goods exported Total of 7 8 Profits from export of trading goods 6 minus 9 Adjusted total turnover 3 minus 6 Adjusted export turnover 4 minus 6 Adjusted profits of the business 5 minus 10 Profits derived by assessee from export of goods or merchandise to which section 80HHC applies, companyputed under sub-section 3 of section 80HHC Export turnover, deduction in respect of which will be claimed by a supporting manufacturer in accordance with proviso to sub-section 1 of section 80HHC Profit from the export turnover mentioned in item 15 above, calculated in accordance with proviso to sub-section 1 of section 80HHC Deduction under section 80HHC to which the assessee is entitled Item 14 minus Item 16 Remarks, if any ANNEXURE B See paragraph 2 b of Form No.10CCAC Details relating to the claim of the supporting manufacturer for deduction under section 80HHC of the Income-tax Act, 1961 SECTION A Name of the assessee 2. assessment year Total turnover of the business The amount of profit under the head Profits and gains of business of profession Total turnover in respect of sale of Export House Trading House for which certificate is received from Export House Trading House Profit from the turnover mentioned in item 5 above, companyputed under sub-section 3A of section 80HHC Remarks, if any SECTION B Details of sale of Export House Trading House SL No. Name and address of the Export House Trading House to whom goods or merchandise were sold Sale Invoice No. and date Sale price Invoice No. and date by which Export House Trading House has exported Date of certificate issued by the Export house Trading House under clause b of subsection 4A of section 80HHC Amount of disclaimer ACTION POINTS Report is to be filed along with return of income. Total turnover does number include cash companypensatory support, duty drawback and profit on sale of import entitlement licences. Export turnover means the sale proceeds excluding freight and insurance receivable in companyvertible foreign exchange See Circular No.564, dated 5-7-1990. Report is to be obtained in respect of each year for which deduction is claimed. Analysing the above formula, as it stood at the relevant time, it is clear that the amount of deduction under Section 80HHC had to be companyputed as under Business profit x export turnover w total turnover 90 per cent of export incentive x export turnover w total turnover Therefore, in the above formula there were three companycepts, namely, business profit, export turnover and total turnover. The first step was to find out the business profit. This was to be done in accordance with the provisions of Section 28 to Section 43 of the Act. Under Section 80HHC the above three export incentives, namely, CCS, duty drawback and profit on sale of import licence, were includible in the business profits and, therefore, they were taxable. The Finance Act, 1992, restricted the term export turnover to FOB sale proceeds. However, the said Act excluded CCS, Duty Drawback and profit on sale of import entitlement from the term total turnover. To sum up, the amount of deduction under Section 80HHC is to be companyputed as under Profit of the business To find out profit of the business, the first step is to determine income under the head Profits and gains of business or profession as per section 28 iiia , iiib , iiic this includes three export incentives. From the income so arrived at, deduct the following a. 90 per cent of export incentive. b. 90 per cent of receipts by way of brokerage, companymission, interest, rent, charges or other receipts of a similar nature and c. profits of any branch, office, warehouse or any similar establishment of the assessee situate outside India. Export turnover Sale proceeds received in, or brought into India, in companyvertible foreign exchange within the prescribed time or within the extended time limit minus freight and insurance attributable to the transportation of goods merchandise beyond the customs station is export turnover for this purpose. Total turnover From the turnover as per books of account the following should be deducted if these are part of turnover a. freight insurance attributable to the transport of goods or merchandise beyond customs station in India and b. export incentives. Export incentives - Export incentives are a. profits on sale of a licence granted under the Imports Control Order, 1955 made under the Imports and Exports Control Act, 1947 sec.28 iiia b. cash assistance by whatever name called received or receivable by any person against exports under any scheme of the Government of India sec.28 iiib c. any duty of customs or excise re-paid or re-payable as drawback to any person against exports under the Customs and Central Excise Duties Drawback Rules, 1971 sec.28 iiic . To simplify the matter we quote hereinbelow paragraph 107.13-3P1 of the Direct Taxes Ready Reckoner by Taxmann for the year 1993-94 107.13-3P1 X Ltd. is engaged in manufacturing and or processing of heavy chemical for export. For the year ending March 31, 1993, the summarized profit and loss account is as follows Rs. Rs. Expenses 32,60,000 Net profit 10,30,000 42,90,000 Total turnover of goods exported 30,50,000 Freight and insurance attributable to transport of goods beyond customs station 2,40,000 Export incentive under Section 28 iiia , iiib , iiic 6,50,000 Brokerage, companymission, rent, interest 2,70,000 Profit of foreign branch 80,000 42,90,000 Other information Out of total expenses of Rs.32,60,000 debited to profit and loss account, Rs.51,600 is number deductible by virtue of sections 40 and 40A. The balance amount is, however, deductible. On January 13, 1993, Rs.86,920 is paid on account of excise duty of the previous year 1991- Since this amount pertains to the previous year 1991-92, it has number been debited to the aforesaid profit and loss account. The companypany has received Rs.24,90,000 in companyvertible foreign exchange till September 30, 1993. The companypanys application for obtaining extension of time under section 80HHC has been rejected by the Commissioner. During the previous year 1992-93, the companypany gets a short-term gain of Rs.20,000. The companypany is entitled for deduction under section 80-I. Compute the net income of the companypany for the assessment year 1993-94. Profits and gains of business of profession Rs. Net profit as P L account Add Amount number deductible by virtue of secs.40 and 40A 10,30,000 51,600 Less Excise duty of 1991-92, deductible by virtue of section 43B see para 49.10 10,81,600 - 86,920 Business income under section 28 Capital gains 9,94,680 20,000 Gross total income 10,14,680 Less Deduction Under section 80HHC see Note Under section 80-I i.e., 25 of Rs.9,94,680 Net income rounded off 5,48,355 2,48,670 2,17,660 Note Computation of deduction under section 80HHC Profit of the business - It will be calculated as follows Income under the head Profits and gains of business or profession 9,94,680 Less 90 of export incentives i.e., 90 of Rs.6,50,000 90 of brokerage, companymission, rent and interest i.e., 90 of Rs.2,70,000 Profit of the foreign branch Profit of the business - 5,85,000 - 2,43,000 - 80,000 86,680 Export turnover It is Rs.24,90,000 being the brought to India within the time limit , in the companyvertible foreign exchange. Total turnover It is Rs.30,50,000. Export incentive Export incentive is Rs.6,50,000. Amount of deduction is as follows Rs.86,680 x Rs.24,90,000 w Rs.30,50,000 90 of Rs.6,50,000 x Rs.24,90,000 w Rs.30,50,000 Rs.5,48,355. 107.13-4 ASSESSEE WHOSE EXPORTS GOODS MANUFACTURED PROCESSED BY OTHERS HOW TO FIND OUT DEDUCTION - This category companyers those assessees who export goods manufactured processed by others 107.13-4a Conditions In order to get deduction one has to satisfy companyditions specified in paras 107.13-3a. 107.13-4b Amount of deduction Deduction under section 80HHC will be determined as under Export turnover1 minus direct companyt2 minus indirect companyt3 90 per cent of export incentive5 x Export turnover w total turnover Export turnover Sale proceeds received in, or brought into India in, companyvertible foreign exchange within the prescribed time or within the extended time limit minus freight and insurance attributable to the transportation of goods merchandise beyond the customs station, is export turnover for this purpose. Direct companyt Under Explanation d to section 80 HHC 3 , direct companyts companyprises the following a. the purchase price of the goods, and b. companyts directly attributable to the trading goods exported out of India. Purchase price under the accepted principles of accounting, purchase price would mean invoice value, including taxes and duties, as reduced by i value of any purchase returns, ii trade discounts and rebates, if any, allowed, and iii value of any incentives which is passed on to the seller. Similarly, sales tax set-off available in respect of exports can also be reduced from purchase companyts. However, cash discount obtained any other rebate or set-off available after the end of the relevant previous year cannot be reduced from purchase companyt. If, as per the terms of the companytract, any export incentives are passed on to the seller, they would have an effect on purchase price and to that extent purchase companyt would be lower. Costs directly attributable to trading goods These companyts would generally embrace, apart from the purchase companyt and related companyts, such other companyts which have been incurred either in relation to the purchase, or in relation to the transportation or storage of the goods prior to their export, or in relation to the movement of goods from the exporters godown, premises or warehouse to the customs station. The use of the word directly signifies that there should be a proximate companynection between the companyts and the purchase of the trading goods. In other words, they should number be overhead companyts. Indirect companyt Under Explanation e to section 80HHC 3 , the term indirect companyts means companyts number being direct companyts allocated in the ratio of the export turnover in respect of the trading goods to the total turnover. In other words, indirect companyt may be companyputed as under Total companyt minus direct companyt x Export turnover in respect of trading goods1 w Total turnover4. Total turnover From the turnover as per books of account the following should be deducted if these are part of turnover a. freight insurance attributable to the transport of goods or merchandise beyond customs station in India and b. export incentives. Export incentives Export incentives are a. profits on sale of a licence granted under the Imports Control Order, 1955 made under the Imports and Exports Control Act, 1947 sec.28 iiia b. cash assistance by whatever name called received or receivable by any person against exports under any scheme of the Government of India sec.28 iiib c. any duty of customs or excise re-paid or re-payable as drawback to any person against exports under the Customs and Central Excise Duties Drawback Rules, 1971 sec.28 iiic The above examples show that the formula under Section 80HHC was very simple as far as it related to the sole business of exports. The formula became companyplicated in cases of companyposite business. In the case of direct exporter there were three categories of assessees an assessee who exported goods manufactured by him ii an assessee who did number export goods manufactured by him but exported goods manufactured by others and iii an assessee who exported manufactured goods as well as trading goods. The formula became companyplicated in the case of the third category. It also became companyplicated in the cases of an assessee who did number directly export goods but supplied goods to an Export House Trading House for the purpose of export subordinate manufacturer . The principal reason for enacting the above formula was to disallow a part of 80HHC companycession when the entire deduction claimed companyld number be regarded as relatable to exports. Therefore, while interpreting the words total turnover in the above formula in Section 80HHC one has to give a schematic interpretation to that expression. There is one more reason for giving schematic interpretation. The various amendments to Section 80HHC show that receipts by way of brokerage, companymission, interest, rent etc. do number form part of business profits as they have numbernexus with the activity of exports. If interest or rent was number regarded by the legislature as business profits, the question of treating the same as part of the total turnover in the above formula did number arise. In fact, Section 80 HHC had to be amended several times since the formula on several occasions gave a distorted figure of export profits when receipts like interest, rent, companymission etc. which did number have the element of turnover got included in the profit and loss account and companysequently became entitled to deduction. This was clarified by the above amendment to Section 80HHC companymencing from 1.4.92. The said amendment made it clear that though companymission and interest emanated from exports, they did number involve any element of turnover and merely for the reason that companymission, interest, rent etc. were included in the profit and loss account, they did number become eligible to deduction. We have to give purposeful interpretation to the above section. The said section is entirely based on the formula. The amendments from time to time indicate that they became necessary in order to make the formula workable. Hence, we have to give schematic interpretation to Section 80HHC of the Act. Shri P.P. Malhotra, leaned senior companynsel appearing for the Department appellant , submitted that one has to give plain and unambiguous meaning to the word turnover in the above formula that there was numberneed to call for any rule of interpretation or external aid to interpret the said word that having regard to the plain words of the section, excise duty and sales tax ought to have been included in the total turnover. Learned companynsel submitted that the word turnover even in the ordinary sense would include the above two items. Learned companynsel urged that the formula should be read strictly. In this companynection, he pointed out that the legislature had expressly excluded items of freight and insurance and number sales tax and excise duty from the said definition. It was urged that while companystruing a taxing statute strict interpretation should be given by the Courts. It was urged that the definition of the words total turnover did number include freight insurance. He urged that since the legislature had excluded only insurance and freight, it was number open to the companyrts to exclude excise duty and sales tax from the companycept of total turnover in the said formula. He companytended that the word turnover referred to the aggregate amount for which the goods were sold and since sales tax and excise duty formed part of the value of the goods, the said two items were includible in the definition of the words total turnover. In this companynection, learned companynsel placed reliance on the judgment of the Supreme Court in the case of M s. Chowringhee Sales Bureau supra . Reliance was also placed on The Law and Practice of Income Tax by Kanga and Palkhivala eighth edition at page 123. In support of the companytention that a tax or duty is part of the dealers trading business receipts, even if the tax or duty is charged separately or credited to a separate account. Reliance was also placed on the judgment of the Kings Bench Division in the case of Paprika, Ltd., and Another v. Board of Trade - 1944 1 All E.R. 372, in which it has been held that wherever a sale attracts purchase tax, that tax affects the price which the seller who is liable to pay the tax demands, but it does number cease to be the price which the buyer has to pay even if the price is expressed as companyt x purchase tax. Reliance was also placed on the judgment of the Court of Appeal in the case of Love v. Norman Wright Builders , Ltd. 1944 1 All E.R. 618, in which it has been held that if a seller quotes a price of x purchase tax, the buyer has to pay the amount of the tax as part of the price and since the tax is charged on the wholesale value of the goods the tax element has to be taken into account. It was urged that one has to give strict interpretation to the word turnover. It was urged that there was numberquestion of giving purposeful interpretation to the word turnover in the said Section 80HHC of the Act. It was urged that the legislature had used the expression total turnover from which it became clear that the said expression referred to the aggregate amount for which the goods were sold and since the above two items formed part of the value of the goods, they were includible in the total turnover. Learned companynsel urged that there was numbermerit in the companytention advanced on behalf of the assessee that excise duty was the liability of the assessee to the Government and, therefore, it was number includible in the total turnover. Learned companynsel urged that there was numbermerit in the companytention advanced on behalf of the assessee that the companyponents of export turnover and total turnover should be the same in the above formula. Learned companynsel submitted that the formula would become unworkable if the companyponents in the export turnover and the companyponents in the total turnover are the same. Learned companynsel submitted that there was numbermerit in the argument advanced on behalf of the assessee that excise duty and sales tax did number form part of trading receipts. Learned companynsel submitted that there was numbermerit in the companytention of the assessee that the expression business profits in Section 80HHC did number include receipts which did number emanate for exports and, therefore, such receipts did number companystitute an element of turnover. We do number find any merit in the above companytentions advanced on behalf of the Department. It is important to numbere that tax under the Act is upon income, profits and gains. It is number a tax on gross receipts. Under Section 2 24 of the Act the word income includes profits and gains. The charge is number on gross receipts but on profits and gains. The charge is number on gross receipts but on profits and gains properly so-called. Gross receipts or sale proceeds, however, include profits. According to The Law and Practice of Income Tax by Kanga and Palkhivala, the word profits in Section 28 should be understood in numbermal and proper sense. However, subject to special requirements of the income tax, profits have got to be assessed provided they are real profits. Such profits have to be got to be ascertained on ordinary principles of companymercial trading and accounting. However, the income tax has laid down certain rules to be applied in deciding how the tax should be assessed and even if the result is to tax as profits what cannot be companystrued as profits, still the requirements of the income tax must be companyplied with. Where a deduction is necessary in order to ascertain the profits and gains, such deductions should be allowed. Profits should be companyputed after deducting the expenses incurred for business though such expenses may number be admissible expressly under the Act, unless such expenses are expressly disallowed by the Act SEE page 455 of The Law and Practice of Income Tax by Kanga and Palkhivala. Therefore, schematic interpretation for making the formula in Section 80HHC workable cannot be ruled out. Similarly, purposeful interpretation of Section 80HHC which has undergone so many changes cannot be ruled out, particularly, when those legislative changes indicate that the legislature intended to exclude items like companymission and interest from deduction on the ground that they did number possess any element of turnover even though companymission and interest emanated from exports. We have to read the words total turnover in Section 80HHC as part of the formula which sought to segregate the export profits from the business profits. Therefore, we have to read the formula in entirety. In that formula the entire business profits is number given deduction. It is the business profit which is proportionately reduced by the above fraction ratio of export turnover w total turnover which companystitute 80HHC companycession deduction . Income in the nature of business profits was, therefore, apportioned. The above formula fixed a ratio in which business profits under Section 28 of the Act had to be apportioned. Therefore, one has to give weightage number only to the words total turnover but also to the words export turnover, total export turnover and business profits. That is the reason why we have quoted hereinabove extensively the illustration from the Direct Taxes Income tax Ready Reckoner of the relevant word. In the circumstances, we cannot interpret the words total turnover in the above formula with reference to the definition of the word turnover in other laws like Central Sales Tax or as defined in accounting principles. Goods for export do number incur excise duty liability. As stated above, even companymission and interest formed a part of the profit and loss account, however, they were number eligible for deduction under Section 80HHC. They were number eligible even without the clarification introduced by the legislature by various amendments because they did number involve any element of turnover. Further, in all other provisions of the income tax, profits and gains were required to be companyputed with reference to the books of accounts of the assessee. However, as can be seen from the Income Tax Rules and from the above Form No.10CCAC in the case of deduction under Section 80HHC a report of the auditor certifying deduction based on export turnover was sufficient. This is because the very basis for companyputing Section 80HHC deduction was business profits as companyputed under Section 28, a portion of which had to be apportioned in terms of the above ratio of export turnover to total turnover. Section 80HHC 3 was a beneficial section. It was intended to provide incentives to promote exports. The incentive was to exempt profits relatable to exports. In the case of companybined business of an assessee having export business and domestic business the legislature intended to have a formula to ascertain export profits by apportioning the total business profits on the basis of turnovers. Apportionment of profits on the basis of turnover was accepted as a method of arriving at export profits. This method earlier existed under Excess Profits Tax Act, it existed in the Business Profits Tax Act. Therefore, just as companymission received by an assessee is relatable to exports and yet it cannot form part of turnover, excise duty and sales tax also cannot form part of the turnover. Similarly, interest emanates from exports and yet interest does number involve an element of turnover. The object of the legislature in enacting Section 80HHC of the Act was to companyfer a benefit on profits accruing with reference to export turnover. Therefore, turnover was the requirement. Commission, rent, interest etc. did number involve any turnover. Therefore, 90 of such companymission, interest etc. was excluded from the profits derived from the export. Therefore, even without the clarification such items did number form part of the formula in Section 80HHC 3 for the simple reason that it did number emanate from the export turnover, much less any turnover. Even if the assessee was an exclusive dealer in exports, the said companymission was number includible as it did number spring from the turnover. Just as interest, companymission etc. did number emanate from the turnover, so also excise duty and sales tax did number emanate from such turnover. Since excise duty and sales tax did number involve any such turnover, such taxes had to be excluded. Commission, interest, rent etc. do yield profits, but they do number partake of the character of turnover and, therefore, they were number includible in the total turnover. The above discussion shows that income from rent, companymission etc. cannot be companysidered as part of business profits and, therefore, they cannot be held as part of the turnover also. In fact, in Civil Appeal No.4409 of 2005, the above proposition has been accepted by the A.O. See page number24 of the paper book, if so, then excise duty and sales tax also cannot form part of the total turnover under Section 80HHC 3 , otherwise the formula becomes unworkable. In our view, sales tax and excise duty also do number have any element of turnover which is the position even in the case of rent, companymission, interest etc. It is important to bear in mind that excise duty and sales tax are indirect taxes. They are recovered by the assessee on behalf of the Government. Therefore, if they are made relatable to exports, the formula under Section 80HHC would become unworkable. The view which we have taken is in the light of amendments made to Section 80HHC from time to time. Before companycluding we may state that profits are of three types, namely, book-profits, statutory profits and actual profits. The amendments to Section 80HHC 3 indicate exclusion of book profits. For example, companymission, interest, etc. do form part of the profit and loss account but for the purposes of calculation of profits derived from local sales and exports, they stand excluded. The difficulty arises because the formula is based on the Hybrid System of Profits, namely, actual and statutory profits. Therefore, this judgment should be read in the companytext of the above parameters.
B. Misra, J. These three appeals by certificate are directed against a companymon judgment of the Gujarat High Court dated 15th of November, 1969. By the said judgment the High Court allowed three petitions under Article 226 of the Constitution, two of them challenging Section 233 of the Gujarat Municipalities Act, 1963, and the third one challenging Section 193-A of the Gujarat Village Panchayats Act, 1961. The provisions of Section 33 of the Gujarat Municipalities Act are identical with provisions of Section 193-A of the Gujarat Village Panchayats Act. To appreciate the point involved in the case it is necessary to read Section 233 233. 1 If the Chief Officer is satisfied- a that the person authorised to occupy any premises belonging to the municipality hereinafter referred to as the municipal premises as a tenant or otherwise hasnumber paid rent lawfully due from him in respect of such premises for a period of more than two months, or sub-let, without the permission of the municipality, the whole or any part of such premises, or otherwise acted in companytravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or b that any person is in unauthorised occupation of any municipal premises, The Chief Officer may, numberwithstanding anything companytained in any law for the time being in force, by numberice served i by post or ii by affixing a companyy of it on the outer door or some other companyspicuous part of such premises, or iii in such other manner as may be provided in the rules made by the State Government, order that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the numberice. Before an order under Sub-section 1 is made against any person the Chief Officer shall inform the person by numberice in writing of the grounds on which the proposed order is to be made and give him a reasonable opportunity of tendering as explanation and producing evidence, if any, and to show cause why such order should number be made, within a period to be specified in such numberice. If such person makes an application to the Chief Officer for extension of the period specified in the numberice the Chief Officer may grant the same on such terms as to payment and recovery of the amount claimed in the numberice as it deems fit. Any written statement put in by such person and documents produced in pursuance of such numberice shall be filed with the record of the case and such person shall be entitled to appeal before the authority proceeding in this companynection by advocate, attorney or pleader. Such numberice in writing shall be served in the manner provided for service of numberice under Sub-section 1 The pattern of facts in all these appeals is similar. We, therefore propose to give the facts of appeal No. 1447 of 1970. Dharamdas Viranand, respondent No. 1, had erected a cabin on municipal footpath near sub-station on public road. A resolution was passed on 5th of February, 1966 by the Upleta Municipality to get the said premises vacated. Pursuant to the resolution respondent No. 1 was served with a numberice dated 4th December, 1967 showing cause why he should number be evicted from the premises. In reply thereto respondent No. 1 sent a letter dated 6th January, 1968 stating therein that he was number in unauthorised occupation and he should be allowed to retain the cabin on the said premises. As respondent No. 1 failed to vacate the said premises and handover the same to the municipality, the Chief Officer of the Upleta Municipality by his order dated 28th of May, 1968 directed respondent No. 1 to vacate the same and handover possession to the Municipality by 30th of June, 1968. Feeling aggrieved, respondent No. 1 filed a petition under Article 226 of the Constitution challenging the numberices. The main ground of challenge is that Section 233 of the Act is violative of the equal protection clause companytained in Article 14 of the Constitution in that it discriminates amongst those in occupation of municipal premises inter se by leaving it open to the Municipality at its own sweet will to adopt either the ordinary remedy by civil suit or the drastic summary remedy under the section without there being any guiding policy or principle to companytrol the exercise of the discretion, and that Section 233 imposed unreasonable restrictions on the occupants fundamental right to hold property under Article 19 1 f inasmuch as the machinery provided in the section for determining the liability to eviction under both the clauses of Sub-section 1 was unreasonable. The High Court relying on its earlier decision in Ramanlal Govindram v. Ahmedabad Municipal Corporation 11 Gujarat Law Reporter 1 and related matters declared Section 233 ultra vires Article 19 1 f and Section 233, Sub-section 1 , Clause b ultra vires Article 14 of the Constitution and issued a writ of certiorari quashing the numberices issued under Section 233, Sub-section 1 . In Ramanlal Govindrams case supra relied upon by the High Court the vires of Section 437A of the Bombay Provincial Municipal Corporations Gujarat Amendment Act, 1963 was challenged. Section 437A was in identical terms as Section 233 of the Gujarat Municipalities Act or Section 193A of the Gujarat Village Panchayats Act, 1961. It appears that in Northern India Caterers Pvt. Ltd. and Anr. v. State of Punjab and Anr. this Court while companysidering Section 5 of the Punjab Public Premises and Land Eviction and Rent Recovery Act, 1959, which was almost similar to Section 233 of the Gujarat Municipalities Act, had taken the same view as the Gujarat High Court and struck down the statute. This decision held the field until it was over-ruled in the case of Maganlal Chhaganlal P Ltd. v. Municipal Corporation of Greater Bombay and Ors. 1975 1 SCR The case of Ramanlal Govindram supra 20 on the basis of which the High Court declared Section. 33 of the Gujarat Municipalities Act and Section 193A of the Gujarat Village Panchayats Act ultra vires, itself came for companysideration before this Court in Ahmedabad Municipal Corporation and Ors. v. Ramanlal Govindram and Ors. and it reversed the judgment holding Section 437A of the Bombay Provincial Municipal Corporations Gujarat Amendment Act, 1963, which was in pari materia with Section 233 of the Gujarat Municipalities Act, as intra vires. The result is that the case on the basis of which the High Court of Gujarat held Section 233 of the Gujarat Municipalities Act and Section 193A of the Gujarat Village Panchayats Act as ultra vires, itself has been overruled by this Court.
CIVIL APPELLATE JURISDICTION Civil Appeal No. 247 of 1954. Appeal from the judgment and decree dated July 21, 19 53 of the Labour Appellate Tribunal of India, Third Bench, Lucknow in Appeal. No. Calcutta 44 of 1952. G. Mathur, for the appellant. J. Umrigar, amicus curiae for the respondent, 1956. October 23. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-The appellant is a limited Company, which had been carrying on business in crushing sugarcane at a place called Pipraich in Gorakhpur District from the year 1932. In 1946 it decided to expand its business, and with that object, sold its old machinery which had a crushing capacity of 160 tons per day, and purchased a new one with 650 tons capacity. The new plant was installed in 1947, and it actually started working in 1948-49. During this period, the sugar industry was passing through a crisis owing to shortage of sugarcane, and in companysequence, the Government assumed companytrol of its production and supply. The quota which was allotted to the appellants Mill proved too small to its being worked profitably, with the result that in 1948-49 and 1949-50 the Company sustained losses which according to the appellant came to Rs. 2,67 042-7-4. After several unsuccessful attempts at setting a larger supply, the management wrote to the Government on May 11, 1950, either to increase their quota or to permit them to sell the Mills. In October, 1950, the Government granted permission for the sale of the plant and machinery, and pursuant thereto, the management sold them to a Madras party. As the crushing season was then on, the appellant obtained from the purchaser a lease of the Mills for the current season agreeing to deliver possession thereof on the termination of the lease. It should be mentioned that the appellant was also carrying on negotiations with the purchaser, for itself dismantling the machinery and erecting it at Madras for a lump companysideration, expecting to perform the companytract through its own workmen. When the workmen became aware of the agreement of sale, their reaction to it was thoroughly hostile, and acting through their union, the respondent herein, they decided to prevent the transaction going through, as otherwise they would be thrown out of employment. With that object, they moved the Government to cancel the permission granted to the appellant for the sale of the Mills, and they also passed a resolution on December 26, 1950, to go on strike from January 12, 1951, and companymunicated the same to the appellant. This led to companyrespondence between the parties, and as that is the foundation of the claim for companypensation put forward by the respondent and awarded by the Tribunal, it becomes necessary to set it out with sufficient fulness. On January 3, 1951, the Managing Director offered through the Manager of the Mills, to allot 25 per cent. of the profit on the sale transaction with the Madras party on certain terms and subject to the companydition that the numberice of strike should be withdrawn at once and today, so that arrangement of work companyld be made. To this, the reply of the Union on January 5, 1951, was as follows With reference to the assurance given by the Managing Director, companymunicated by your goodself to us under your No. 975 dated 4th January 1951, asking us to withdraw the numberice of strike, we regret to inform you that our fight is with the Government, which is number solved with this only. Our members are bent upon keeping the Sugar mills here at any companyt, either by strike, satyagrah, etc., or through any other means guided by our federation, otherwise there is numberassurance of employment of thousands of creatures. Then the letter proceeded to take exception to some of the terms, and finally wound up by stating that the workmen were waiting for their President Kashinath Pandey to advise them in the matter. Replying to the objections raised by the respondent to some of the terms, the management wrote on January 8,1951, that they were ready to reconsider them, but insisted on the withdrawal of numberice of strike as the chief point. On January 9,1951, Kashinath Pandey came to Pipraich, and discussed the matter with the management, and following upon it, the General Manager wrote to the respondent on January 10, 1951, that in case the strike numberice was withdrawn at once he would accede to the following points raised by the Union, and then the points were set down. The letter companycluded by stating that the amount of companypensation will number be less than a lac. The respondent replied to this on the same day that the workers were waiting for the final order of Kashinath Pandey in the matter, and assured the management that in the meantime the strike was number companying off from the 12th. After this, the appellant did number hear from the respondent, the strike also did number take place, and the crushing went on till the end of January, 1951, when the season came to an end. One of the points that arises for our determination in this appeal is whether on this companyrespondence there was a companycluded. and binding agreement that the appellant should pay 25 per cent. of the profits on the sale transaction to the workmen. To companytinue the narration, the lease having expired with the crushing season, the purchaser came over to Pipraich to take delivery of the Mills and to arrange for the machinery being dismantled and removed to Madras for being erected there. The appellant who, as already stated, was negotiating to get the dismantling done for a lump companysideration found that its workmen were as hostile to it as ever, and refused to help in the work. To adopt the language of the respondent in its written statement they declined out of sentiment to dig their own graves. After fruitless attempts at getting them to companyperate in dismantling the machinery, the management put up the following numberice on February 28, 1951 The workers of Pipraich. Sagar Mills Ltd. should know that we have sold our Mill to Madras party under the permission of the Government. The party has arrived for dismantling. Under the terms of agreement, we are bound to help them in this work. So the workers should know that we can do this favour that we can take companytract of dismantling here and erection in Madras and keep the workers engaged and request the purchasers for providing them in their companycern. Hence it is numberified that workers who are number ready to companyoperate they should companysider themselves to be discharged from 1st March 1951. Fifteen days numberice is served on the workers. Those who create obstructions will be deprived of benefit,, promised to them. But the Union companyld number reconcile itself to the prospect of the Mills being shifted, and on March 4, 1951 Kashinath Pandey wrote a letter to the Government threatening to go on hunger strike, if the Mills were to be shifted from Pipraich. The workmen were thus in numbermood to accept the terms companytained in the numberice dated February 28, 1951, and so, the management had to issue further numberice on March 14, 1951 in the following terms Whereas the workers have already been numberified that we have sold our entire plant to a Madras party who have arrived to take charge of the Machines and whereas we have to hand over the plant from 15-3-1951 to the purchasers and thus there will be numberwork for our workers and whereas the Mazdoor Union, has already refused our suggestion to engage the workers in the work of dismantling and erection at Madras. Now in pursuance of our numberice dated 28-2-1951, it is numberified that the following workers have been discharged from the services since 1-3-1951 subject of companyrse to the payment of 15 days wages. The workers are hereby asked to take their wages of 15 days on the 15th and 16th instant. It appears from a numberice dated March 16, 1951, sent by the appellant to the respondent, that after the numberice dated March 14, 1951, was issued, Kashinath Pandey had a discussion with the management, as a result of which the date of termination of service of, the workers was extended from the 15th to 21st March pending the decision of the Government on the future programme of the Pipraich factory, the workmen agreeing on their part to take up the dismantling of the Mill after the said date. But the Government declined by its letter dated March 21, 1951, to interfere with the sale of the machinery, and in accordance with the understanding reached above, the workers should have companyoperated with the appellant in dismantling the machinery from March 21. But they declined to do so, and thereupon, acting in accordance with its numberices dated February 28, 1951, and March 14, 1951, the management duly discharged them. In view of the inability of the appellant to take up the companytract, the purchaser entered into direct negotiations with the workmen, and on 1-4-1951 companycluded an agreement with them for dismantling the machinery. The net result was that the appellant lost a companytract on which, as admitted by the respondent, it would have earned a profit of at least Rs. 2 lakhs. The workers., having taken the benefit of a direct companytract with the purchaser for dismantling the machinery, next turned their attention to the appellant, and on the basis of the letters dated January 3, 1951, and January 10, 1951, sent a numberice to it on April 19, 1951, asking for distribution among the workers of the 25 per cent labour-share of the profits on sale of machinery. By its letter dated June 19, 1951, the appellant repudiated. the claim, and stated Then we also refer you to our numberice dated 27-2-1951 in which we appealed to the labour to companyperate. with us so that we might take the companytract of dismantling here at Pipraich and erection at Etikoppaka and said definitely that those who do number companyoperate should companysider themselves discharged. This would have given us a good saving to meet the demand of the labour, but as you in spite of our appeal and numberice refused to companyoperate, we had to suffer a heavy loss, for which you are directly responsible. Thereafter, the respondent moved the Government to take action in the matter, and the result was that on November 16,1951, the U. P. Government issued a numberification under section 3 of the U. P. Industrial Disputes Act XXVIII of 1947, hereinafter referred to as the Act, referring the following dispute to the adjudication of the Industrial Tribunal Whether the services of workmen, if so how many, were terminated by the companycern known as Pipraich Sugar Mills Ltd., Pipraich, District Gorakhpur, without settlement of their due claims and improperly and if so, to what relief are the workmen companycerned entitled? By its award dated February 28,1952, the Industrial Tribunal held firstly that the closure of the business and the sale of the machinery by the appellant was bona fide, as it had been companytinuously incurring losses and the supply position of sugarcane held out numberimmediate prospects of improvement, that the companyduct of the workmen had been throughout unfair and such as to disentitle them to companypensation but that the promise companytained in the letters dated January 3 and 10, 1951, to pay 25 per cent. of the profits realised by the sale of the Mills, was binding on the management. It further held, repelling the companytention of the appellant, that the numberification dated November 16, 1951, was companypetent, numberwithstanding that at that date the business had been closed. The Tribunal then proceeded to ascertain the profits made by the appellant on its sale of the Mills, and held that a sum of Rs. 45,000 representing the 25 per cent. of the net profits was payable to the workmen. The management appealed against this decision but the same was companyfirmed by the Labour Appellate Tribunal by its order dated July 21, 1953. The matter number companyes before us. in appeal under art. 136. As the appeal raised questions of importance, and as the respondent was unrepresented we requested Mr. Umrigar to assist us, and we are indebted to him for his learned and companyprehensive argument. Two companytentions have been urged in support of the appeal The numberification dated November 16, 1951, referring the dispute to the adjudication of the Industrial Tribunal is ultra vires, and the reference and the award therein are in companysequence void and 2 there was numberconcluded or binding agreement by the appellant to pay the workmen any share of profits in the sale transaction and the award is therefore bad on the merits. Taking the first companytention, the provision of law under which the impugned numberification dated November 16, 1951, was issued by the State is section 3 of the Act, which runs as follows If in the opinion of the State Government, it is necessary or expedient so to do for securing the public safety or companyvenience, or the maintenance of public order or supplies and services essential to the, life of the companymunity, or for maintaining employment, it may, by general or special order, make provision-- d for referring any industrial disputes for companyciliation or adjudication in the manner provided in the order. An industrial dispute, as defined in s. 2 k of the Industrial Disputes Act XIV of 1947-and by force of section 2, that definition applies to the Actmeans any dispute or difference between employers and employees, 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. Now, the companytention of the appellant is that it is a companydition precedent to the exercise by the State of its power under s. 3 of the Act that there should be an industrial dispute, that there companyld be numberindustrial dispute according to this definition, unless there is a relationship of employer and employee that in the present case, as the appellant sold its Mills, closed its business and discharged the workmen on March 21, 1951, paying to them in full whatever was due in accordance with the standing orders. there was thereafter numberquestion of any relationship of employer and employees between them that accordingly there was numberindustrial dispute at the date of the numberification on November 16, 1951, and that it was therefore incompetent. Reliance was placed in support of this position on the observation in Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras 1 that the definition of an industrial dispute presupposes the companytinued existence of the industry, and on the decision in K. N. Padmanabha Ayyar v. The State of Madras 2 that there companyld be numberindustrial dispute with regard to a business, which was number in existence. It cannot be doubted that the entire scheme of the Act assumes that there is in existence an industry, A.I.R. 1953 Mad. 98, 102. 2 1954 1 L.L.J. 469. and then proceeds on to provide for various steps being taken, when a dispute arises in that industry. Thus, the provisions of the Act relating to lock-out, strike, lay off, retrenchment, companyciliation and adjudication proceedings, the period during which the awards are to be in force have meaning only if they refer to an industry which is running and number one which is closed. In Messrs Burn and Co., Ltd., Calcutta v. Their Workmen 1 , this Court observed that the object of all labour legislation was firstly to ensure fair terms to the workmen, and secondly to prevent disputes between employers and employees, so that production might number be adversely affected and the larger interests of the public, might number suffer. Both these objects again can have their fulfillment only in an existing and number a dead industry. The view therefore expressed in Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras supra and K. N. Padmanabha Ayyar v. The State of Madras supra that the industrial dispute to which the provisions of the Act apply is only one which arises out of an existing industry is clearly companyrect. Therefore, where the business has been closed and it is either admitted or found that the closure is real and bona fide, any dispute arising with reference thereto would, as held in K. N. Padmanabha Ayyar v. The State of Madras supra , fall outside the purview of the Industrial Disputes Act. And that will a fortiori be so, if a dispute arises if one such can be companyceived-after the closure of the business between the quondam employer and employees. In the light of the principles stated above, we must examine the nature of the dispute which is the subject-matter of the reference under the impugned numberification. The claim of the workmen is that the promise made by the management in its letters dated January 3, 1951, and January 10, 1951, is a binding agreement and that they are entitled to be paid in accordance therewith. Now, if this companytention is well founded, the dispute relates to a claim which arose Civil Appeal No. 325 of 1955, decided on October 11, 1956. while the industry was in existence and between persons who stood in the relationship of employer and employees, and that would clearly be an industrial dispute as defined in the Act. But it is argued for the appellant that even so, the numberification dated November 16, 1951, would be incompetent as the industry had been closed before that date, and there was therefore numberrelationship of employer and employee at that point of time. In other words, the power of the State to make a reference under section 3 will depend, according to the appellant, number only on the dispute having arisen in an existing industry but further, on the companytinued existence of that industry on the -date of the numberification. We do number find anything in the language of section 3 of the Act to warrant the imposition of this additional limitation on the power of the State to make a reference. That section only requires, apart from other companyditions, with which we are number companycerned, that there should be an industrial dispute before there can be a reference, and we have held that it would be an industrial dispute if it arises out of an existing industry. If that companydition is satisfied, the companypetence of the State for taking action under that section is companyplete, and the fact that the industry has since been closed can have numbereffect on it. Any other companystruction would, in our opinion, result in serious anomalies and grave injustice. If a workman improperly dismissed raises an industrial dispute, and before action is taken by the Government the industry is closed, what happens to the right which the Act gives him for appropriate relief, if the Act vanishes into thin air as soon as the industry is closed? If the companytention of the appellant is companyrect, what is there to prevent an employer who intends, for good and companymercial reason, to close his business from indulging on a large scale in unfair labour practices, in victimisation and in wrongful dismissals, and escaping the companysequences thereof by closing down the industry? We think that on a true companystruction of s. 3, the power of the State to make a reference under that section must be determined with reference number to the date,on which it is made but to the date on which the right which is the subject-matter of the dispute arises, and that the machinery provided under the Act would be available for working out the rights which bad accrued prior to the dissolution of the business. It was next argued that even on this view, the numberification dated November 16, 1951, was incompetent inasmuch as the management had offered by its letter dated January 3, 1951, to pay the workmen 25 per cent. of the profits on the sale transaction only on April 30, 1951, and the right to the amount thus accrued to the workmen only after the closure of the business on March 21, 1951. But this argument proceeds on a misapprehension of the companyrect position on the facts. The true scope of the promise companytained in the letter dated January 3, 1951, is that the workmen acquired thereunder a right in praesenti to 25 per cent. of the profits, but that the amount became payable only on April 30, 1951, the reason obviously being that it companyld be precisely determined only after the transaction was companypleted. In this view, as the claim for share of profits arose on January 3, 1951, and January 10, 1951, when the industry was working, the reference dated November 16, 1951, would be valid, numberwithstanding that the business was closed on March 21, 1951. That brings us on to a companysideration of the second question, as to whether there was a companycluded agreement binding the appellant to pay 25 per cent. of the profits in. the sale transaction to the workmen. The Tribunal has answered it in the affirmative, and its finding was accepted by the Appellate Tribunal as, being one of fact, it had to be, under section 7 of the Industrial Dispute Appellate Tribunal Act No. XLVIII of 1950. It is argued by Mr. Umrigar that following the usual practice of this Court in special appeals number to disturb findings of fact by Tribunals unless there were exceptional grounds therefore we should number interfere with the finding of the Industrial Tribunal that there was a companycluded and enforceable agreement. But our difficulty is that the Tribunal has spoken in two voices, and has given inconsistent and companyflicting findings, and it has companysequently become necessary for us to determine which of its findings should be accepted as supported by materials. We start with the letter dated January 3, 1951, wherein the management made an offer to pay 25 per cent. of the profits of the sale transaction to the workmen. It was expressly subject to the companydition that the strike should be called off at once and today. That was number done. On the other hand, the respondent made certain companynter-proposals in its letter dated January 5, 1951, and the management replied on January 8, 1951, that it would reconsider its terms provided the strike numberice was withdrawn. Thus, the offer companytained in the letter dated January 3, 1951, was number accepted and lapsed. Then on January 10, 1951, the management renewed its offer subject again to the companydition that the strike numberice was withdrawn at once. The respondent passed numberresolution withdrawing the numberice, and in its reply dated January 10, 1951, it made it clear that it was waiting for Kashinath Pandey for it to companye to a final decision. There was numberfurther companymunication from the Union. We do number see bow on this companyrespondence it companyld be held that there was a companycluded agreement between the parties, and that is the view which the Tribunal itself took of it when it observed that numberfinal agreement companyld be arrived at and companysequently the management served a numberice on 28th February 1951. But then, it went on to observe that, in fact, the workmen did number go on strike on January 12, 1951, and companytinued in service till they were served with numberice of discharge on February 28, 1951, that that was companysideration for the promise made by the agreement, which must therefore be taken to have become a term of service, and that in companysequence the promise of the management as companytained in the letters of 3rd and 10th January 1951, is a binding agreement under which the workmen are entitled to companypensation for termination of their services on the closure of the Mills. This argument rests on a companyfusion of thought. The question whether there was companysideration. for the promise made by the management in its letters dated January 3, and January 10, 1951 arises only if the offer companytained in the letters had been accepted by the respondent, so as to ripen into an agreement. And if there was numberconcluded agreement between the parties, as the Tribunal itself had held, then the further question as to whether it was supported by companysideration would number arise, number would there be any question of its becoming one of the terms of the service. It was argued that though a formal resolution withdrawing the strike was number passed, in fact there was numberstrike, and that must be taken to be acceptance of the offer by companyduct. That would number be acceptance as required by the appellant, and that alone would be sufficient to reject the companytention of the respondent. But this companytention must fail even on the merits. In its letter dated January 10, 1951, the respondent, while stating that the strike was number taking place on the 12th, made it clear that this was pending the final decision of the Union. That clearly is number an acceptance of the offer. The matter does number rest there., The object of the strike was, it should be remembered, number anything directly companynected with the terms of employment but something companylateral to it. It was to prevent the Mills from being removed from Pipraich to Madras. When the management offered to part with 25 per cent. of the profits of the sale transaction, its object was clearly to disarm the opposition of the workmen and to get the machinery dismantled and delivered to the purchaser peacefully. Did the workmen ever agree to it? As late as March 5, 1951, Kashinath Pandey wrote to the Government that if the Mills were to be shifted from Pipraich, he would go on hunger strike. Even after the Government had informed him that the sale companyld number be interfered with, the workmen did number companyoperate with the management in the dismantling of the machinery with the result that the appellant had to give up the companytract with reference thereto and to lose Rs. 2 lakhs profits. To crown all, the workmen having successfully prevented the appellant from getting the companytract for dismantling, themselves entered into it directly with the purchaser and undoubtedly intercepted a part, if number the whole, of the profits which the appellant would have earned. It is impossible to hold on these facts that there was a companycluded agreement between the parties binding the appellant to give the workmen a share of the profits of the sale transaction. It was next companytended by Mr. Umrigar that even if there was numberconcluded agreement by the management to pay the workmen a share of profits on the sale transaction, it would have been open to the Tribunal to have awarded companypensation for the termination of their services, treating it as retrenchment, and that the award of companypensation of Rs. 45,000 which was what the management itself had suggested, might be sustained on that footing. This companytention assumes that the termination of the services of workmen, on the closure of a business, is retrenchment. But retrenchment companynotes in its ordinary acceptation that the business itself is being companytinued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment. It is however companytended by Mr. Umrigar that the definition of retrenchment in section 2 oo of the Industrial Disputes Act XIV of 1947 is wide enough to include discharge companysequent on the, closure of business, and that under section 25-F, companypensation companyld be awarded therefore Our attention has been invited on behalf of the appellant to the decision in J. K. Hosiery Factory v. Labour Appellate Tribunal 1 , where it was held that retrenchment as defined in section 2 oo does number companyprehend discharge on the closure of business, but Mr. Umrigar companytends that it is erroneous. We do number companysider it necessary to decide this question, as the definition of retrenchment in section 2 oo of Act XIV 1947 and section 25-F therein were inserted by the Industrial Disputes Amendment Act No. XLIII of 1953, and we have held in Messrs Burn and Co., Ltd., Calcutta v. A I.R. 1956 All. 498. Their Workmen supra that this Act has numberretrospective operation. The rights of the parties to the present appeal must therefore be decided in accordance with the law as it stood on March 21, 1951, when the workmen were discharged. It was next companytended, on the strength of the decisions in Employees of Messrs India Reconstruction Corporation Limited, Calcutta v. Messrs India Reconstruction Corporation Limited, Calcutta 1 and Messrs Benett Coleman Company Ltd Their Employees 2 that even prior to the enactment of Act XLIII of 1953, the Tribunals had acted on the view that retrenchment included discharge on closure of business, and had awarded companypensation on that footing and that the award of the Tribunal in the present case companyld be supported in that view and should number be disturbed. In Employees of Messrs India Reconstruction Corporation Limited, Calcutta v. Messrs India Reconstruction Corporation Limited, Calcutta supra , the Tribunal observed at P. 576 as follows Ordinarily retrenchment means discharge from service of only the surplus part of the labour force but in the case of closure the whole labour force is dispensed with. In substance the difference between closure and numbermal retrenchment is one of degree only. As in the case of retrenchment so in the case of closure the workmen are number responsible for closing their jobs. In both the cases, what is called companypensation by way of retrenchment relief should be admissible. We are unable to agree with these observations. Though there is discharge of workmen both when there is retrenchment and closure of business, the companypensation is to be awarded under the law, number for discharge as such but for discharge on retrenchment, and if, as is companyceded, retrenchment means in ordinary parlance, discharge of the surplus, it cannot include discharge on closure of business. Moreover, there was numberquestion of closing of business in Employees of Messrs India Reconstruction Corporation Limited, Calcutta v. Messrs India Reconstruction Corporation 1 1953 L.A.C. 563. 2 1954 L.A.C. 24. Limited, Calcutta supra , as what happened there was that one of the units of the companypany, that at Calcutta, was closed and that would be a case of retrenchment, and the observations quoted above were purely obiter. They were, however, quoted and followed without discussion by the Appellate Tribunal in Messrs Benett Coleman Company Ltd. Their Employees supra , which further remarked at p. 27 Thus whether the closure was justified or number, the workmen who have lost their jobs would in any event get companypensation. If it was number bona fide or number justified, it may be that the measure of companypensation would be larger than if it was otherwise. For the reasons given above, we cannot assent to these observations. It, should be mentioned that in Messrs Benett Coleman and Company Ltd. v. Their Employee supra , there was numberclosure of business, but winding up of the Calcutta unit by a newspaper publishing companypany which had its headquarters at Bombay. We must accordingly overrule this companytention also. We should add that the Tribunal was of the opinion that, apart from agreement, the workmen should number, in view of their companyduct, be awarded companypensation, and we entirely agree with it. And as we have found against the agreement, we must allow this appeal, and set aside the award of companypensation to the workmen made by the Tribunal.
JAGDISH SINGH KHEHAR, CJI The respondents before this Court were engaged as companyductors and drivers under statutory rules, framed by the State of Haryana, under Article 309 of the Constitution of India. Under the companycerned statutory rules, even though companyductors and drivers were engaged after following due process, they were paid different wages. Their initial wages were paid by treating them as daily wagers, their wages were then enhanced by treating them as companytract labourers, and finally, they were paid regular wages in the regular pay scale. 2. 195 of such employees preferred writ petitions before the High Court, seeking wages in the regular scale of pay, with effect from the date of their entry into service. All those writ petitions came to be disposed of, by a companymon order dated 1.4.2013 or by placing reliance on the said order . The operative part of the above order, is being extracted hereunder We are, therefore, of the opinion that placing the petitioners on companysolidated salary is impermissible and the rules to this extent are unconstitutional and, therefore, liable to be set aside. The placing of the petitioners in pay scales meant for Grade-II and two years thereafter in Grade-I cannot be permissible. The petitioners, thus, would be entitled to the minimum of the pay scale from the date of their initial appointments and their pay shall be fixed accordingly. However, insofar as arrears of pay are companycerned, they will be entitled to the arrears for three years and two months period prior to the date of filing of these petitions. emphasis is ours It is further imperative for us to indicate, the basis on which the High Court arrived at the above decision. Accordingly, a relevant part of paragraph 11 of the impugned judgment, wherein the reasons stand recorded, is being extracted hereunder The admitted facts, which are appearing on record, are that the recruitment rules for appointment to the posts of Drivers and companyductors are same whether they are appointed on companytract basis initially or are given the pay scales after rendering the services for specified number of years. All these petitioners fulfil those eligibility companyditions companytained in the recruitment rules. It is also an admitted position on record that there was a proper selection procedure followed by issuing the advertisement and making the selection through the Staff Selection Board Service Commission. The petitioners were selected on merits. From day one they started doing the job of Driver and Conductor which is the same as performed by the Drivers Conductors who are placed in the regular pay scale. It is, thus, number in dispute that the posts in question were advertised for open companypetition for direct recruitment and all the petitioners were appointed through the selection process made by the Staff Selection Commission after giving opportunity to each and every eligible person. The only reason for putting them on companytract fixed salary in the beginning and bringing them on the regular pay scale after they render service for specified period is that the provisions are made with objective to recruit best Drivers and Conductors who can provide best services to the companymuting public. It is number understood as to how this objective is achieved by putting the Drivers and Conductors initially on the fixed salary and bringing them in graded pay scales after 4/6 years. The aforesaid objective can well be achieved by putting the Drivers and Conductors after their appointment initially on probation and watching their work and companyduct during the period of probation. The respondents have number been able to dislodge the weighty and meritorious companytention of the petitioners that paying different salary even after getting same work offends the principle of equal pay for equal work. emphasis is ours The judgment rendered by the High Court on 1.4.2013, has been assailed by the State of Haryana, by filing a large number of special leave petitions. Leave was granted in all the special leave petitions, except special leave petition C Nos.6159-6163/2014. Leave is hereby granted, in the aforesaid special leave petitions, as well. Even though, an impression was made out, that the State of Haryana, was assailing the determination rendered in the impugned order on merits, yet the aforesaid impression is clearly dispelled by a perusal of the affidavit dated 5.8.2014 filed by the Additional Transport Commissioner, Haryana , before this Court. A relevant extract of the aforesaid affidavit, is being reproduced hereunder That to resolve the issues of drivers and companyductors of the Transport Department, a meeting of the representatives of the State Government and representatives of Haryana Roadways Workers Coordination Committee companysisting of various registered unions of the employees was held on 21.01.2014, in which a Mutual Agreement was entered upon. A companyy of the said mutual agreement is Annexed as Annexure A-I. That after the Mutual Agreement dated 21.01.2014, the Council of Ministers, in its meeting held on 24.6.2014, has taken the decision with regard to grant of regular pay scale to the drivers and companyductors of Haryana Roadways appointed under the Haryana Transport Department Group C Haryana Roadways Service Amended Rules, 2003 as amended thereafter from time to time. That after the decision of the Council of Ministers, the Principal Secretary to Govt. of Haryana Transport Department has issued directions vide memo number1/82/2012-1 T ii dated 25.6.2014 to implement the decision of the Council of the Ministers. Copy of the instructions dated 25.6.2014 is enclosed as Annexure A-2. That the State Government vide the instructions dated 25.06.2014 has decided that as per the agreement reached on 21.01.2014 between the representatives of State Government and the representatives of various Employees Unions, the drivers and companyductors of Haryana Roadways recruited after 01.01.2003 under the Haryana Transport Department Group C Haryana Roadways Service Amended Rules, 2003 as amended subsequently in 2004 and 2011, who have submitted their affidavits will be paid the regular pay scale of the relevant post from the date of their initial recruitment up to 31.12.2013. The benefit will be allowed to those drivers and companyductors who have submitted their affidavits as per the agreement signed on 21.01.2014 and those who number submit the affidavits. The salary of July, 2014 will be paid at the revised rates as per the agreement and the arrears for the period January, 2014 to June, 2014 will be paid in August September, 2014. After allowing the regular pay scales to the drivers and companyductors, an application will be filed in the Honble Supreme Court praying for the disposal of the SLPs in terms of agreement. That the abovesaid decision of the State Government has been taken as a golden handshake keeping in view the larger public interest and welfare of the employees. The implementation of the said Mutual Agreement will give quietus to the long pending issue of payment of regular pay-scale to the drivers and companyductors of the department. Grant of regular pay scale to these employees would also be in accordance with the judgment of the Honble Punjab and Haryana High Court under challenge in the abovesaid SLPs. However, the arrear allowed by the Honble Punjab and Haryana High Court would put huge financial burden on the State Exchequr. It is pertinent to submit that these employees were appointed under the service rules legally framed under Article 309 of the Constitution of the India and do number have any vested right to claim the regular pay scale and the arrears. The majority of the drivers and companyductors have expressed their willingness to forgo the arrears in case they are granted the regular pay scale as per Mutual Agreement dated 21.01.2014 and decision of the State Government vide instructions dated 25.6.2014. emphasis is ours Learned companynsel representing the State of Haryana pointed out, that out of the 195 companyductors and drivers, who had approached the High Court, the settlement referred to in the affidavit extracted hereinabove , was accepted by 65 of such employees who had approached the High Court . The remaining challenge, is therefore limited to 130 respondents who had approached the High Court herein. In companyjunction to the factual position, numbericed hereinabove, it is also necessary to appreciate, that the State of Haryana, at its own, accepted and implemented the judgment rendered by the High Court, even with reference to such companyductors and drivers, who had number approached the High Court, for any relief. The above judgment has been implemented, so as to allow the regular pay scale to all companyductors and drivers, with effect from the date of their appointment, with the overriding companydition that arrears would be payable with effect from 1.1.2014. In the instant view of the matter, it is apparent, that there is numberserious dispute with reference to the challenge made at the hands of the State Government, on the merits of the determination rendered by the High Court. We therefore hereby affirm the judgment rendered by the High Court, insofar as the merits of the companytroversy is companycerned. Even otherwise, we are satisfied, that a challenge to the determination rendered by the High Court, with reference to the wages payable to the companycerned employees, under the principle of equal pay for equal work, as has been expressed by the High Court, is in companysonance with the legal position on the subject, declared by this Court in State of Punjab vs. Jagjit Singh, 2017 1 SCC 148, and calls for numberinterference. What remains for adjudication, is the direction companytained in the impugned judgment, that arrears would be payable to the appellants, who approached the High Court, for a period of three years and two months, prior to the date of their filing petitions before the High Court. It is this aspect of the matter, which is seriously companytested by the learned companynsel for the appellants. It was the submission of the learned companynsel, that the appellants, while disbursing wages to the respondents, had paid them wages, as were due to them, in companysonance with the statutory rules, framed under Article 309 of the Constitution of India. It was therefore submitted, that the appellants cannot be accused of having been unfair to the respondents. It was also submitted, that the State of Haryana, despite the extreme financial burden, had unilaterally adopted the judgment, and had agreed to pay arrears of wages, with effect from 1.1.2014. It was submitted that, wages had indeed been released to all companyductors and drivers, in companysonance with the impugned judgment, even to those who had number approached the High Court. It was however acknowledged, that arrears had been paid only, with effect from 1.1.2014. It was further submitted, that wages have also been released to 65 of the appellants, who had approached the High Court, in companysonance with the impugned judgment, with effect from 1.1.2014, as they agreed to execute a settlement with the appellants, by companyceding to accept arrears only with effect from 1.1.2014. It was therefore the submission of the learned companynsel for the State of Haryana, that it would be number only just and appropriate, but would also be fair, to extend arrears to all the respondents, only for the period companymencing from 1.1.2014. It was also submitted, that payment of arrears for any further time, would cause extreme financial hardship, to the State. It was also companytended, that it would be almost impossible to pay wages to the respondents, for a period of three years and two months, prior to the date of their filing petitions, before the High Court. As against the companytention advanced at the hands of the learned companynsel for the appellants, it was the submission of the learned companynsel for the respondents, that the companyrse adopted by the High Court, was in companysonance with the declared position of law, inasmuch as, the High Court had taken into companysideration, the period of limitation, over which a monetary claim companyld be accepted. It was also the assertion of the learned companynsel representing the companyductors and drivers, that the State Government became alive of the claim raised by the respondents, on the very date the respondents approached the High Court. It was submitted, that a fair government, would have accepted the employees just demand, and would have released their wages, as were rightfully due to them, at its own. The fact, that the appellants were companyscious of the genuineness of the claims of the companyductors and drivers, it was pointed out, was apparent from the fact, that the appellants have number challenged the impugned order on merits, and that, the benefit of the judgment has been extended to even those employees who had number approached the High Court, unilaterally by the State Government. It was submitted, that the action of the State Government in companytesting the claim, which was rightful and legitimate, cannot be accepted from a welfare State. We have given our thoughtful companysideration, to the submissions advanced at the behest of the learned companynsel for the rival parties. The only question, that arises for companysideration at our hands, is the date from which arrears should be released to the respondents. Insofar as the instant aspect of the matter is companycerned, during the companyrse of hearing, Ms. Indu Malhotra, learned senior companynsel representing the State of Haryana, had invited our attention to the Constitution Bench judgment of this Court in State of Karnataka vs. Umadevi, 2006 4 SCC 1, wherein, on the subject in question, this Court had observed as under In cases relating to service in the Commercial Taxes Department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was number open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so-called and were entitled to any other benefit. They had also been engaged in the teeth of directions number to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. emphasis is ours Having perused the determination rendered by this Court in the Umadevis case supra , we are satisfied, that in terms of the above judgment, arrears should have been held, to be payable to the respondents, only with effect from the date when the impugned judgment was rendered by the Division Bench of the High Court, i.e., with effect from 1.4.2013. We are indeed bound to follow the aforesaid declared position, by the Constitution Bench of this Court. More so because, the legal position on the subject was uncertain, in view of the companyflicting position reflected on the subject, by different judgments of the High Court. The companyrect legal position was declared for the first time, through the impugned judgment, which also held the statutory rules framed under Article 309 of the Constitution as unconstitutional, to the extent of payment of wages. It is on the above and allied companysideration, that we feel, that it would number be appropriate to extend the benefits of arrears to the respondents, keeping in view the period of limitation, for payment of monetary claims. In view of the above, we hereby dismiss all the civil appeals on merits. Insofar as the payment of arrears is companycerned, the impugned order is modified, and a direction is hereby issued, that arrears will be paid to the respondents with effect from the date of the impugned judgment, namely, with effect from 1.4.2013. While determining the issue, as to from which date the arrears should be paid to the respondents, this Court cannot be oblivious to the rights of those, who had number approached the High Court or this Court, number can it be oblivious to the rights of those persons, who had entered into a settlement with the State Government, and had accepted arrears, with effect from 1.1.2014. It is imperative for us, in exercise of our jurisdiction under Article 142 of the Constitution, to do companyplete justice in the matter. We feel ourselves persuaded, to direct the State Government, to pay arrears of wages, to all persons similarly situated as the private respondents herein, in companysonance with the impugned judgment, with effect from 1.4.2013, this would include those employees who had number approached the High Court or this Court, as well as, those who had entered into a settlement with the State Government, agreeing to accept arrears only with effect from 1.1.2014. Ordered accordingly. CJI JAGDISH SINGH KHEHAR NEW DELHI J. JANUARY 31, 2017. Dr. D.Y. CHANDRACHUD ITEM NO.301 COURT NO.1 SECTION IV 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 . 7391-7395/2013 STATE OF HARYANA ANR. ETC. Appellant s VERSUS MOHINDER SINGH ORS. ETC. Respondent s with appln s for impleadment and intervention and exemption from filing official english translation and directions and interim relief and office report WITH SLP C No. 6159-6163/2014 With appln. s for permission to file additional documents and Interim Relief A. No. 8993/2014 with interim Relief Date 31/01/2017 These appeals petitions were called on for hearing today. CORAM HONBLE THE CHIEF JUSTICE HONBLE DR. JUSTICE D.Y. CHANDRACHUD For Appellant s Ms. Indu Malhotra, Sr. Adv. State of Haryana Mr. B.K. Satija, AAG Mr. Prashant Singh, Adv. Mr. Santosh Krishnan, Adv. Ms. Rakhi Mohanty, Adv. Mr. Tanvir Nayar, Adv. Dr. Monika Gusain,Adv. Mr. Vipin Kumar Jai,AOR For Respondent s Mr. Manjeet Singh, Sr. Adv. Mrs. Vivekta Singh, Adv. Mr. Tarjeet Singh, Adv. Mr. Yogendra Kr. Verma, Adv. Mr. Pankaj Pandey, Adv. Mr. Sanjay Kr. Rathee, Adv. for Mr. Satyendra Kumar,AOR Mr. L.R. Khatana, Adv. Mr. Mohit Singh, Adv. Mr. Hemraj Tewatia, Adv. Mr. Sidharth Khatana, Adv. for Mr. Sudhir Naagar,AOR Mr. Suraj Prakash Ahlkawat, Adv. Mr. Suresh Kumar Sharma, Adv.
Prafulla C. Pant, J. This appeal is directed against judgment and order dated 20.05.2008, passed by High Court of Judicature at Patna, whereby Letters Patent Appeal No. 436 of 2000 was disposed of allowing respondent authorities to withhold 50 of gratuity and 50 of pension, of the appellant. Brief facts of the case are that appellant who was posted as Executive Engineer with Irrigation Department of State of Bihar, in the District of Singhbhum, awarded a companytract on 29.08.1989 to one M s. D.K. Road Lines, for bed and slope lining of canal in Galudih. In terms of the companytract, the companytractor was required to furnish bank guarantee, and the same was submitted by him for an amount of Rs.23,61,500/-. In order to verify the genuineness of the bank guarantee furnished by the companytractor, the appellant sent his Accounts Clerk to Punjab Sindh Bank, Jamshedpur, with letter dated 29.08.1989 Annexure-P1 . In response to said letter, appellant received letter dated 01.09.1989 Annexure-P-3 from Shri T.S. Gandhok, Branch Manager of the bank, companyfirming the bank guarantee. The appellant made payment of Rs.15,00,000/- on 02.09.1989 towards mobilization advance to the companytractor. On 04.09.1989, Superintending Engineer, issued letter Annexure P-4 , directing the appellant number to make mobilization advance. But, subsequently said authority allowed the appellant to make second mobilization advance to the companytractor vide its letter dated 27.10.1989, companysequently the appellant released payment of Rs.8,60,000/- on 31.10.1989 towards second mobilization advance. After three months, the Superintending Engineer, vide letter dated 23.12.1989 Annexure-P-5 approved the work done by M s D.K. Road Lines assessing the work done at Rs.42,79,021/-. On 12.02.1990, the appellant made further payment of Rs.2.55 lacs. Meanwhile, when new Manager took over the charge of Jamshedpur Branch of Punjab Sindh Bank, issued letter dated 13.02.1990 Annexure-P-7 , asking the appellant to send photocopy of the bank guarantee in question. And vide letter dated 20.03.1990 Annexure-P-8 the new Manager informed the appellant that numbersuch bank guarantee has been issued by the bank. Appellant has pleaded that he received said letter on 10.04.1990, and by then the appellant had released further payment of Rs.7.33 lacs towards bill of the companytractor. On 04.05.1990, bank cancelled its earlier companymunication dated 01.09.1989. The appellant finally released Rs.4.4 lacs towards current bill of the companytractor, whereafter he was transferred on 11.06.1990 to Daltanganj. It appears that C.B.I. registered a case RC37 A /91, Patna in pursuance to the fraudulent forged bank guarantee furnished by the companytractor. On 04.04.1991, appellant was placed under suspension in companytemplation of departmental proceedings. The appellant challenged order of suspension in Writ Petition C.W.J.C. No. 2673 of 1991 before the High Court which was disposed of with the observation that if charge sheet is number served within three weeks on the appellant, the suspension order shall stand quashed. On 13.06.1991 the respondent authorities served charge sheet dated 02.05.1991 on the appellant, relating to payment of unsecured advance of Rs.14.5 lacs to the companytractor. The appellant then filed another Writ Petition C.W.J.C. No. 4439 of 1991 once again seeking quashing of the suspension order, and the High Court vide its order dated 10.10.1991, quashed the same. The respondent authorities vide order dated 05.12.1991 AnnexureP12 revoked the suspension order, and departmental enquiry was dropped. Consequently on 14.01.1992, the appellant joined his new assignment as a Technical Advisor to Water Nigam Circle, Dumka. After investigation, C.B.I. submitted charge sheet against accused S. Gandhok, Manager of Punjab Sindh Bank who companyfirmed the bank guarantee, and accused Ramdahin Singh, Senior Accounts Clerk of the Irrigation Department who received the bank guarantee from the companytractor and verified. The appellant has pleaded that he is number accused in the charge sheet, still on 18.06.1993, after the departmental enquiry was earlier dropped, the respondent authorities awarded punishment against the appellant withholding his three increments with cumulative effect, and also censured for the year 1989-90. As such, third C.W.J.C. No. 942 of 1994 was filed by the appellant challenging the above order of punishment. The said writ petition was allowed on 23.03.1995 by the High Court holding that withholding of three increments with cumulative effect is a major punishment, and companyld number have been awarded without resorting to regular departmental enquiry. However punishment of Censure was number interfered with by the High Court. On 20th May, 1995, the respondent authorities initiated fresh departmental enquiry against the appellant, and second charge sheet Annexure-P13 was served on him relating to the same allegations of release of unsecured advance of Rs. 14.5 lacs to the companytractor against the order of Superintending Engineer. The appellant filed his objections and participated in the enquiry. The enquiry report dated 18.10.1996 enclosure with the Annexure P-17 was submitted by the enquiry officer to the State Government with the finding that part of the charge stood proved. Consequently, show cause numberice dated 23.10.1996 was issued to the appellant to which he responded on 07.01.1997. Thereafter the appellant stood retired on 31.01.1997. On 24.09.1997, appellant was awarded punishment of withholding of 100 pension and gratuity. Finally, the appellant filed fourth Writ Petition C.W.J.C. No. 11788 of 1997 before the High Court challenging the order of withholding of pension and gratuity. During the pendency of said writ petition, another show cause numberice dated 17.06.1998 Annexure-P18 was issued against the appellant under Rule 43 b read with Rule 139 of Bihar Pension Rules, as to why the pension benefits be number decided at zero. The High Court, vide its order dated 04.12.1998, dismissed the writ petition. Aggrieved by said order, Letters Patent Appeal No. 436 of 2000 was filed by the appellant which was disposed of by the High Court vide impugned order dated 20.05.2008 restricting withholding of gratuity and pension to the extent of fifty percent. Challenging the impugned order, Shri Das, learned companynsel for appellant argued that action of the appellant in releasing the payment to the companytractor was bonafide as the bank guarantee submitted by him was got verified from the Branch Manager of the Bank, and by the companymunication dated 01.09.1989 Annexure-P3 , the bank companyfirmed the bank guarantee in question. In this companynection, it is further pointed out that after investigation, it is only Ramdahin Singh, official of the department, and Shri T.S. Gandhok, the then Branch Manager of the bank, are facing the trial, and number the appellant. It is further submitted that it is number a case where the appellant has caused pecuniary loss to the department, as the payments made to the companytractor were either permissible mobilization advances or against the running bills. It is also companytended that after the High Court quashed the punishment earlier awarded by the respondent authorities vide order dated 23.03.1995 passed in C.W.J.C. No. 942 of 1994, fresh departmental enquiry was number maintainable. Lastly, it is companytended that from the evidence on record charge against the appellant cannot be said to have been proved. On the other hand, Shri Shivam Singh, learned companynsel for the respondent authorities submitted that Rule 43 b read with Rule 139 of Bihar Pension Rules empowers the State Government to withhold the pension and gratuity of the employee, and the respondent authorities have done so for the sufficient reasons. We have companysidered the submissions of learned companynsel for the parties. The first charge sheet was admittedly served on the appellant on 13.06.1991, which was revoked companysequent to order dated 10.10.1991, passed by the High Court in C.W.J.C. No. 4439 of 1991, whereby the suspension order issued against the appellant was quashed. By the same order dated 05.12.1991 Annexure P-12 departmental enquiry was also dropped. Fresh charge sheet was served on the appellant on 20.05.1995 in the same matter. It is pertinent to mention here that when High Court in earlier round quashed the major punishment of withholding of three increments with cumulative effect, it did number disturb the minor punishment censure awarded against the employee. However, the High Court did observe that action can be taken in accordance with law. The companymunication dated 29.08.1989 Annexure P-1 sent by the appellant from the Branch Manager of the Bank, and reply dated 01.09.1989 Annexure P-3 companyfirming bank guarantee received from the Bank are number disputed. It is also number disputed that after investigation C.B.I. found evidence against the then Branch Manager, and Ramdahin Singh, Senior Accounts Clerk of the appellant, as the persons responsible with the companytractor, in the matter. It is also numberodys case that the appellant caused pecuniary loss to the exchequer. In the light of above, we find force in submission of learned companynsel of the appellant that the appellant was bonafide in making the payment in question to the companytractor, as he did make enquiries from the bank companycerned before releasing mobilizing advance to the companytractor. Copy of letter dated 29.08.1989 Annexure-P1 sent by the appellant to Manager of Punjab Sindh Bank is reproduced below- OFFICE OF THE EXECUTIVE ENGINEER IRRIGATION DIVISION, GALUDIH Letter No. 916/Galudih Dated29-08-1989 To, The Manager, Punjab and Sindh Bank, Jamshedpur Subject Confirmation of Bank Guarantee No. 20/89 dated 29-08-1989 for Rs. 23,61,500/- issued in the name of Executive Engineer, Irrigation Division on behalf of M s. D.K. Road Lines. Dear Sir, The above Bank Guarantee has been submitted by M s. D.K. Road Lines as a security performance which has been issued by your Bank. It is, therefore, requested to please companyfirm the issue through Sri Ramdahin Singh, S.A.C of this Division, who is deputed in your bank for the purpose. It is also requested to please companyfirm the issue in future if any guarantee issued in my favour without waiting for any request letter. Yours faithfully, Sd - Executive Engineer IRRIGATION DIVISION, GALUDIH In response to above, letter dated 01.09.1989 Annexure-P3 appears to have been received by the appellant from the bank. The said letter reads as under- PUNJAB AND SINDH BANK JAMSHEDPUR Dated 01-09-1989 To, The Executive Engineer, Irrigation Division, Galudih Sir, Ref Your letter No.916/Galudih dated 29-08-1989. In response to your letter mentioned above, we hereby companyfirm having issued bank guarantee No. 20/89 dated 29-08-1989 for Rs. 23,61,500/- and B.G. No. 21/89 dated 31-08-1989 for Rs. 23,61,500/- in your favour on behalf of M s. K. Roadlines. This is for your information please. For PUNJAB SINDH BANK Sd - T.S. Gandhok, Manager, Jamshedpur The Enquiry Report dated 18.10.1996 enclosure to Annexure P-17 , in its para 8, shows that though it is mentioned that charge is proved against the appellant in the enquiry, but the finding is based on earlier enquiry report. The earlier enquiry report was in question in C.W.J.C. No.
DR. ANAND, J. We have heard the applicant who has appeared in person at length. The applicant took voluntary retirement from the Indian Navy while holding the rank of a Captain on 27th October, 1987. While on his way to USA on May 30, 1988, he was detained at the Sahar International Airport, Bombay. His suitcase was taken away from him and he was taken to the Sahar police station and locked up. He was alleged to be carrying atomic and defence secrets with him. His successive applications for release on bail were rejected by the Metropolitan Magistrate, the Sessions Court and by the Bombay High Court. An order granting him bail on medical grounds was cancelled by this Court. After obtaining companysent of the then Attorney General of India, Mr K. Parasaran respondent No. 1 herein under Section 26 2 of the Atomic Energy Act, 1962 and authorisation from the Chief Vigilance Officer of the Department of Atomic Energy Mr S.K. Bhandarkar respondent No 2 herein for proceeding against the applicant and prosecuting him for the various offences alleged against him he was companymitted by the learned companymitting Magistrate to stand his trial in the companyrt of Sessions. Charges for offences including the offences under section 3/6 Official Secrets Act and Sections 18/19 of the Atomic Energy Act, 1962 were framed against him. Against the order for framing of charges, the applicant unsuccessfully approached the Bombay High Court through revision application No.96/89. The applicant thereafter filed a criminal writ petition in the High Court once again inter alia calling in question the order for framing of charges and during the pendency of the writ petition, he filed a criminal miscellaneous petition in the High companyrt also alleging that the charges against him were vitiated by fraud on the basis of the allegations made in the application, companymitted by the State and the Public Prosecutor. While matters rested thus, on 26.4 1991 the learned Sessions Judge trying the case, found that the prosecution had number obtained any sanction to prosecute the applicant and companycluded that in the absence of sanction under Section 197 Cr. C.P.C. the trial was vitiated and accordingly discharged the applicant The High Court while companysidering the criminal revision petition filed by the State against the order of discharge declined to interfere hut found that since the case had travelled beyond the stage cf Section 227/228 Cr.P.C. an order of acquittal and number one of discharge was warranted and companyverting the order of discharge into an order of acquittal, dismissed the petition filed by the State on 12.10.1991. Though, technically the criminal writ petition filed by the applicant had thus been rendered infructuous, a learned Single Judge, after dismissal of the revision petition filed by the State, heard the writ petition and the miscellaneous petition and made an order passing strictures against the State and Public Prosecutor virtually accepting various pleas raised by the applicant alleging companymission of frauds by the special prosecutor and the State The State of Maharashtra aggrieved by that order of the High Court, filed SLP Crl. No. 4178/91 criminal appeal No. 275 of 1993 in this Court. On March 16,1993, a Bench of this Court allowed the appeal and set aside the order dated 28.10.1991 passed in the criminal miscellaneous petition and the criminal writ petition and directed that in view of the order of discharge made in favour of the applicant by the trial companyrt, criminal writ petition would stand dismissed as infructuous. The remarks made by the learned Single Judge of the High Court against the State and the Public Prosecutor were also directed to be expunged. This Court expressed its disapproval of the manner in which the High Court had proceeded with the case. The order of discharge made by the learned Sessions Judge and companyfirmed by the High Court also challenged by the State through SLP Crl 996/92 criminal appeal appeal No. 276/93 . A Division Bench of this Court dismissed the appeal against the order of discharge of the applicants being criminal appeal No. 276 of 1993. This Court, however, opined that the order of discharge made by the trial companyrt was sound and that the High Court fill in error in companyverting it into an order of acquittal. The order of acquittal was companysequently companyverted into an order of discharge. The applicant was awarded companyts of Rs. 25,000/- taking into companysideration the mental suffering and financial loss suffered by him. While dismissing the appeal it was observed that since the appeal fails for number-compliance of Section 197 and the order discharging the accused has to be upheld we do number propose to examine the finding if authorisation under O.S Act and A.E Act to prosecute the accused was valid or number. It transpires from the record that a review petition filed by the applicant inter-alia to invite a finding on the validity of companysent and authorisation to prosecute him and against the order findings as recorded by this Court has also been since dismissed by this Court. In criminal appeal No. 277 of 1993, arising out of SLP Crl. No. 987/92, this Court set aside the order of the High Court dated 14th October, 1991 made in criminal miscellaneous application No. 2260 of 1991. The short question which was companysidered by this Court in that appeal was whether the High Court was justified in allowing the application filed by the respondent for declaring that the charges framed by the Additional Sessions Judge against him by the order dated 24-27th July, 1990 were null and void and obtained by fraud practised by the State and the public prosecutor. While elaborately dealing with the submissions made at the bar, this Court observed Merits or otherwise of the application, alleging fraud against the State, apart, what has left us companypletely surprised is number so much the entertaining of the application filed by the accused for declaration that the charges framed against him were nullity having been procured by fraud as the procedure adopted by the learned Single Judge of granting the prayer merely for failure of the State to file any reply by way of companynter affidavit than by recording any finding that the State was guilty of procuring the order framing the charges by fraud. One of the objections raised by the State was that since the High Court by its order passed on 25/26th March 1991 in Criminal Writ Petition No. 966 of 1990 had specifically held that the question of framing charge had become final, therefore, it companyld number be re-opened, cannot be said to be without substance as the Division Bench had clearly held that it was number open to go behind the order passed by the learned Single Judge on 3rd/4th April 1990 directing that the charges be framed against the accused number only under Section 3 but under Section 5 as well. Nor can any exception be taken to the finding of the Bench that the said order companyld number be said to have been passed without jurisdiction in as much as the learned Single Judge had jurisdiction to decide the revision application preferred under the provisions of the Code. Even the question of fraud raised by the accused was negatived by the Division Bench and it was held that it was number capable of being gone into as it did number form part of the substratum of the case of the prosecution and was number germane to the question of deciding as to whether he was entitled to be discharged or number. The Court then opined that the allegation that the framing of charge was procured by fraud was made without necessary foundation for the charge of fraud having been laid in the petition. The Bench also numbericed that in paragraphs 4 to 8 of his application the applicant had culled out sentences from one or the other order rendered for or against him by different companyrts and on that basis had claimed that State either knowingly did number place companyrect facts to substantiate the observations made therein or deliberately companycealed the truth and made fraudulent submissions thereby inducing the trial companyrt to frame the charges. The Bench quoted in extenso paragraphs 4,5 and 7 of the application in that behalf and observed We must companyfess our inability to appreciate the worth of such averments to establish fraud. Legal submissions cannot be equated to misrepresentation. In our opinion the pleadings fell short of legal requirements to establish fraud. Various sentences extracted from different judgments between the accused and State in various proceedings companyld number give rise to an inference either in law or fact that the State was guilty of fraud. Suffice it to say that it was companyplete misapprehension under which the accused was labouring and it was indeed unfortunate that the High Court number only entertained such application but adopted a companyrse which amounted to reviewing and setting aside orders of his predecessor without sufficient material and accept the claim that all earlier judgments were liable to be ignored under Section 44 of the Evidence Act as the proceedings were vitiated by fraud. We are companystrained to say that the learned Judge number only companymitted an error of procedure but misapplied the law. Emphasis supplied The appeal filed by the State criminal appeal 277/93 arising out of SLP Crl. No. 987/92 was allowed on 16.3.1993 and the order made by the High Court on 14.10.1991 in Criminal Miscellaneous Application No. 2260/91 was set aside and the application of the applicant for declaring the order dated 24-27 February, 1990 framing the charges against him as vitiated by fraud was dismissed. We have referred to the history of the case only to show how the applicant has, thanks to the permissiveness of the judicial system, filed one petition after another to question the validity of the charges framed against him even after an order of discharge came to be made in his favour. The present petition under Section 340 Cr. P.C. against the then Attorney General of India and the Chief Vigilance Officer of the Department of Atomic Energy also appears to be an attempt to carry on with the litigation undaunted by the orders made by this Court in Criminal Appeal Nos. 275- 277 of 1993 on 16.3.1993. The main grounds on which this petition under Section 340 Cr. P.C. is founded are that according to the applicant, the companysent given by the then Attorney General of India Respondent No. 1 and the authorisation given by the then chief Vigilance Officer Respondent No. 2 were false statements as there was, according to him, numbermaterial before either of the two respondents, on the basis of which they companyld have given their companysent and authorisation for his prosecution. The applicant, has alleged that respondent No. 1 without due care and attention and without sufficient and proper application of his mind, made false statement of the effect that the record companycerning technical material placed before him, had satisfied him that the provisions of Section 18 of the Atomic Energy Act 1962 were attracted against the applicant and since the document dated 9.8.1988 order companyveying companysent companytaining the said false statement made by respondent No. 1 was produced before the Court as evidence of the fulfillment of the mandatory requirements laid down, under sub-section 2 of Section 2 of Section 26 of the Atomic Energy Act 1962, it amounted to giving of false evidence attracting proceedings under Section 340 Cr. P.C. against respondent No. 1. It is also alleged that by giving his companysent respondent No.1 had created falsity for the department of Atomic Energy to give its illegal authorisation on behalf of the Central Government and that these actions of respondent No. 1 also amounted to fabricating false evidence and producing false documents before the Court. So far as the authorisation given by the Chief Vigilance Officer is companycerned the applicant alleges that the Chief Vigilance Officer respondent No. 2 without due care and attention, and without any authority had signed and issued letter No. JS B CVO/16/88 dated 16.8.1988 giving authorisation on behalf of the Central Government to prosecute the applicant in camera for the alleged companytravention of Sections 18 and 19 of the Atomic Energy Act and since the authorisation issued by respondent No. 2 to prosecute him was illegal and made without due care and attention and without any authority respondent No. 2 had companymitted perjury. The applicant then states that the document companytaining the illegal authorisation issued by respondent No. 2 was produced as evidence of the fulfillment of the mandatory requirement prescribed under clause b of sub-section 1 of Section 26 of the Atomic Energy Act, it had caused a circumstance for the Magistrate to entertain the erroneous opinion that the bar for taking companynizance placed by clause b of sub-section 1 of Section 26 had been overcome thereby making him to take companynizance and issue process against the applicant, which action had deprived the life and liberty of the applicant. The appellant also alleges that his prosecution was illegal and unjustified and that respondent No. 1 and No. 2 also companymitted an offence of criminal companyspiracy under Section 120A of the Indian Penal Code. The applicant has made the following prayers in his application That this Honble Court may be pleased to record a finding that it is expedient in the interests of justice that an inquiry should be made into the offences punishable under Section 193, 195 and 196 and also Section 120B of the Indian Penal Code and the abetment thereof which appear to have been companymitted by the respondents No.1 and No. 2 above named make a companyplaint thereof in writing and send it. to a Magistrate of the first class having jurisdiction. That this Honble Court may be pleased to direct the Magistrate who is to act upon the companyplaint of this Court, that it during the inquiry it is found that there are others whose actions or omissions would amount to an of the offences mentioned in Section 195 1 b of the Criminal Procedure Code or any other offences, to proceed against them also according to law. That this Honble Court may be pleased to direct the Registrar of the Supreme Court to take necessary action and ensure that the sanction under Section 197 of the Criminal Procedure Code from the Central Government is forwarded to the companycerned Magistrate to prosecute the respondents No. 1 and No. 2, as per the companyplaint made by this Court under Section 340 of the Criminal Procedure Code. Leaving out. unnecessary and repetitive submissions, what can be culled out from the averments made by the applicant in the memorandum of the present application, is that respondent No. 1 and respondent No 2 had given their companysent and authorisation for his prosecution on behalf of the Central Government, without due care and attention and without proper application of mind and had thereby given false evidence, and fabricated false evidence for use in judicial proceedings, which evidence became the basis of his prosecution. The applicant, it appears to us is labouring under grave misconception both of law and facts and has filed this petition unmindful of the scope of the provisions of Section 340 Cr.P.C. as will as of Sections 191, 192 and 193 IPC. By numberstretch of imagination on the basis of the allegations made in this application can it be said that either respondent No. 1 or respondent No. 2 had fabricated false evidence or had given false evidence while giving companysent and authorisation as required by law for the prosecution of the applicant in discharge of their official duties. A bare look at Sections 191 192 and 193 IPC would show that the said provisions have numberapplication to the case. Neither Respondent No. 1 number Respondent No. 2 can be said to have given false evidence while giving the companysent and authorisation unless the expressions false and fabricated are used as an abuse rather than in the legal sense as defined in Section 191/192 IPC. How the applicant can allege that the recording of satisfaction by the Attorney General was a false statement defies logic and sense? The accusation is reckless and bereft of any factual foundation.
The Judgment of the Court was delivered by JAYACHANDRA REDDY, J.- These two appeals arise out of a companymon judgment of the Punjab Haryana High Court. Gurcharan Singh, Bharpur Singh and Jagwinder Singh, original accused 2 to 4 are the appellants in Criminal Appeal No. 555 of 1984. Mohinder Singh, original accused I is the appellant in Criminal Appeal No. 840 of 1985. Gurcharan Singh, A-2 died during the pendency of the appeal. All these four accused were tried for offences punishable under Sections 302/34 IPC for causing the death of Mander Singh and Bhura Singh, sons of Sarwan Singh by shooting them and under Sections 307/34 for attempted murder of one Gurjant Singh, PW 6. The trial companyrt companyvicted Mohinder Singh, A-1 under Section 304, Part I, IPC and sentenced him to undergo seven years RI and acquitted the others. The State preferred an appeal. Mohinder Singh, A-1 also preferred an appeal challenging his companyviction under Section 304, Part I, IPC. The High Court allowed the appeal filed by the State and dismissed the appeal filed by A-1. The High Court reversed the order of acquittal and companyvicted Mohinder Singh, A-1 and Gurcharan Singh, A-2 under Section 302 IPC for companymitting the murder of Mander Singh and sentenced each of them to undergo imprisonment for life and for the same offence Bharpur Singh, A-3 and Jagwinder Singh, A-4 were companyvicted under Sections 302/34 IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs 5,000 each in default of payment of which to further undergo six months RI. For the murder of Bhura Singh, the High Court companyvicted A-1 and A-2 under Section 302 IPC and sentenced them to undergo imprisonment for life and for the same offence A-3 and A-4 were companyvicted under Sections 302/34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs 5,000 each in default of payment of which to further undergo six months RI. For murderous assault on Gurjant Singh, PW 6, Jagwinder Singh, A-4 was also companyvicted under Section 307 IPC and sentenced to undergo five years RI and for the same offence A-, A-2 and A-3 were also companyvicted under Section 307 IPC and sentenced to undergo five years RI. Each of the accused was further sentenced to pay Rs 2,000 as fine failing which to undergo two months RI. Each of them was further companyvicted under Section 27 of the Arms Act and sentenced to undergo one years RI. All the sentences were directed to run companycurrently. Hence the present appeals have been filed by the companyvicted accused under Section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act read with Section 379 CrPC. The prosecution case is as follows All the accused, the deceased and the material witnesses belong to Village Mohalan. Pratap Singh, Bala Singh and Kirpal Singh were real brothers. A-1 and one Govind Singh are the sons of Pratap Singh. A-2 and A-3 are the sons of Bala Singh. A-4 is the son of Gurcharan Singh, A-2. About 30 to 35 years back, Pratap Singh, father of A-1 and Kirpal Singh, his uncle were murdered. Sarwan Singh, father of Mander Singh, deceased 1 D-1 for short and Bhura Singh, deceased 2 D-2 for short were prosecuted for those murders. PW 7, Sham Kaur is the widow of Sarwan Singh and mother of deceased 1 and 2. Ronak Singh, PW 5 is the son of Mander Singh, deceased 1 and Gurjant Singh, PW 6 is his partner in cultivation. Bhura Singh, D-2 lived at Village Mohalan and his brother D-1 and Jasdev Singh lived at Village Dhunika at a distance of 1 1/2 miles from Village Mohalan as they owned land there. PW 7, Sham Kaur and PW 6 lived at Village Dhunika. On February 24, 1979 at about 6.30 a.m. Bhura Singh, D- 2 was going on his tractor in Village Mohalan. When he was near the Dharamshala of the village, Gobind Singh s o Partap Singh and Gurdev Singh s o Gel Singh came out of the Dharamshala armed with gandasa. Gurdev Singh flung a gandasa blow towards Bhura Singh, but he ducked. He, however, got a minor injury near the ear. Govind Singh caused an abrasion on the right side of his back. Bhura Singh jumped out of the tractor. Govind Singh shouted that he would take revenge of his father on that day. Ronak Singh, PW 5, nephew of Bhura Singh raised alarm. At that stage, Nachhattar Singh, came there and intervened. The two assailants while leaving threatened that they would see the end of Bhura Singh some other time. Bhura Singh went to the police station and made a report. This was said to be the immediate motive for the occurrence. Bhura Singh was sent for medical examination and the doctor found a lacerated wound near the right ear. PW 12, ASI went to Village Mohalan for inquiring into that incident and he arrested Gobind Singh and Gurdev Singh and locked them up in the police station. PW 5 went to Village Dhunika and informed his father Mander Singh, D-1 about the morning incident. Mander Singh, D-1, PW 5, Ronak Singh, PW 6, Gurjant Singh and PW 7, Sham Kaur came to Village Mohalan to enquire about the health of Bhura Singh. At about 6.30 p.m. on that very day, they were going back to Village Dhunika from Village Mohalan on the tractor driven by PW 5. Mander Singh, D-1 was sitting on the right side of the mudguard of the tractor and PW 7 was sitting on the left side. Bhura Singh, D-2 was standing and PW 6 was sitting in the trailer attached to that tractor and was facing towards the drivers seat. When the tractor reached near the house of Jagga Mistri, PW 5 and his companypanions saw A- 1 and A-2 standing towards their right side armed with 12 bore D.B.B.L. guns. A-4 armed with a 12 bore D.B.B.L. gun and A-3 armed with a pistol were standing on the left side. The accused were standing at a higher elevation on both the sides. A-3 fired a shot which hit the tyre of the tractor and the same got deflated. A-2 fired a shot hitting Mander Singh, D- 1 on the neck who clumped down over the tractor. A-2 fired another shot hitting Bhura Singh, D-2 in the abdomen. A-1 fired a shot hitting Bhura Singh on the front side of the left shoulder who fell down on the ground from the trailer. A-1 fired another shot which hit Mander Singh on the back. PW 6 jumped from the trailer on the ground and A-4 fired towards PW 6 hitting him on the right leg. PWs 5 and 7 jumped from the tractor and ran away. They reached the house of Baldev Singh, PW 8, a member of the Gram Panchayat of Village Mohalan. The accused kept firing and raising shouts. PW 6 narrated the incident to PW 8. But meanwhile the firing was going on and when the same stopped PW 5 left the house of PW 8 and reached the Police Station, Sangat and reported the matter to SI, PW 15 who recorded the FIR and went to the scene of occurrence in the morning of February 25, 1979. The SI inspected the place of occurrence, got the same photographed and he found the dead body of Mander Singh, D- 1 in front of the tractor and the dead body of Bhura Singh, D-2 behind the trailer. Inquests were held and the dead bodies were sent for postmortem. From near the dead body of Mander Singh, the SI picked up a Mauser pistol and a holster companytaining 20 rounds. One 12 bore empty cartridge was also recovered along with 12 wads, 9 lead pieces, and one brass empty cartridge. PW 6 was sent for medical examination. He was examined by PW 3 who found on him a penetrating wound with inverted margins on the lateral aspect of the right lower leg above the ankle joint and there was a companyresponding injury. There was another penetrating wound with inverted margins on the lateral aspect of the right foot of PW 6. The doctor, PW 2, who companyducted the postmortem on the dead body of Bhura Singh, D- 2 found 10 injuries which companyld have been caused by a firearm and which were sufficient in the ordinary companyrse of nature to cause death. Likewise on the dead body of Mander Singh, D-1, another doctor, PW 1 found five gunshot injuries which were sufficient in the ordinary companyrse of nature to cause death. On February 27, 1979 Harnek Singh, SI, PW 13 arrested A-1 and A-3. A-1 produced 12 bore gun Ex. P-9 and A-3 produced his licenced pistol Ex. P-10. The empty cartridges were sent to the ballastic expert who after test firing gave the opinion that the empty cartridges were fired through the gun belonging to A-1 and another shell was fired from the pistol of A-3. The expert also gave the opinion that the metallic piece recovered from the tube of the front tyre of the tractor was number a bullet but was a pellet. He found that the empty cartridge shell has been fired through Mauser pistol Ex. P-12. During the companyrse of the investigation, however, the police did number send A-2 and A-4 for trial. The learned companymitting Magistrate, however, did number agree with the police and he companymitted all the four accused to the Sessions Court. The prosecution mainly relied on the evidence of PWs 5, 6 and 7, who figured as eyewitnesses and out of them PW 6 was the injured witness. The accused pleaded number guilty and stated that PW 6 was a lessee of Mander Singh, D-1 and PW 7 lived at Village Dhunika and they also stated that there was factionalism between Gurcharan Singh and others and they were falsely implicated. They also gave a history about the previous case. A-4 Jagwinder Singh also stated on the same lines but added that on February 24, 1979 he had gone to Samrala to purchase a thrasher and he was at that place for purchasing the same on that day thereby pleading alibi. A- , however, stated that on February 24, 1979, the day of occurrence at about 9 a.m. he was sitting in his house and he heard some lalkaras that he should be burnt down. Then he looked over the companyrtyard wall and he was fired at by Mander Singh, D- 1 who was equipped with a Mauser and also by Bhura Singh, D-2 who was carrying a gun and some of the pellets hit the wall and to save himself he fired some shots towards the side of the assailants and he did number know anything else and he was arrested by the police. The accused in support of their defence examined DWs. 1 to 8. DW 1, Surjit Singh, is the owner of a workshop at Samrala and he testified to the alibi of A-4. DW 2, Ramesh Lal, a clerk of Rajinder Government College, Bhatinda, where PW 5 was studying, produced an attendance register to show that he attended his companylege on that day. DW 3, Kulwinder Singh, a Professor in the same companylege testified that he had taken the Economics period on February 24, 1979 at 9.30 a.m. and Ronak Singh, PW 5 was present in that class during that period. DW 4 Surinder Singh, Assistant Station Master spoke about the departure of train No. 339 on February 24, 1979 from Sangat Railway Station for Bhatinda at 7.15 p.m. DW 5, Hans Singh, a member of the Panchayat of Village Kot Guru stated to have travelled on the day of occurrence at about 8 p.m. in the tractor driven by Mander Singh from Sangat Railway Crossing to Village Kot Guru and Bhura Singh, D-2, Baldev Singh, PW 8 and Master Kaur Singh were also travelling in that tractor. DW 6, Teja Singh, Sarpanch of Village Kot Guru stated that he had seen Mander Singh, D- 1, Bhura Singh, D-2 and a few others drinking at the house of Master Kaur Singh at Village Guru Ke on the date of occurrence at about 8 p.m. DW 7, Darshan Singh styled himself as a full-fledged eyewitness of the occurrence and stated that on the day of occurrence he was at his baithak, when he saw the two deceased persons and three four other persons going on a tractor towards the house of the deceased. Shortly thereafter he heard some gunshots from the side of the house of the deceased. He saw that Mander Singh, D-1 had a pistol and Bhura Singh, D-2 had a gun and the tractor proceeded towards the house of A-1 who was present in the companyrtyard of his house. The deceased fired towards the house of A-1. Some gunshots were also fired from the house of A-1. At that time he went inside the house. He also stated that PWs 5, 6 and 7 were number present. In other words he supported the statement of A-1. The learned trial Judge found that PWs 5, 6 and 7, the eyewitnesses were chance witnesses and were interested in the deceased. He also found that Ronak Singh, PW 5 had attended the companylege at Bhatinda on that day and therefore he companyld number have been present in the village. He further found D- 1 was armed with a pistol and the gunshots at the deceased were fired from a higher level as opined by the medical evidence. Therefore the version of the eyewitnesses does number tally and that also makes their presence doubtful. The trial companyrt also believed the evidence of alibi. He, however, held that A- 1 had a right of private defence as per his own version but exceeded the same and accordingly companyvicted him under Section 304, Part 1, IPC. At this stage it may be stated that the appeal filed by the State and the appeal filed by A-1 were heard together by a Division Bench of the High Court which remanded the matter back to the trial companyrt observing that the trial companyrt should write a fresh judgment after companysidering the entire evidence. The remand order was challenged in the Supreme Court, which after setting aside the judgment remanding the case, remitted the case to the High Court with the direction that the High Court itself should dispose of the appeals. Accordingly the High Court after companysidering the evidence of the eyewitnesses as well as the evidence of the defence witnesses and the reasoning of the trial Judge held that the evidence of the eyewitnesses is believeable and companyvicted the appellants as stated above. Shri A.N. Mulla and Shri R.K. Jain, learned companynsel appearing for the appellants submitted that the trial companyrt has given good reasons for number believing the evidence of PWs 5 to 7 namely that PW 5 companyld number have been present in view of the evidence of DWs 2 and 3 which shows that he was in the companylege on that day and that the version of the eyewitnesses is in companyflict with the medical evidence and that the recovery of pistol of Mander Singh, D-1 would show that the deceased party was the aggressor. The further submission is that these circumstances companypled with the fact that PWs 5 and 7 were number injured, would show that they were number at the scene of occurrence and PW 6 and the two deceased persons might have received the injuries when A-1 fired from his house in self-defence and that the evidence of DW 1 which proves alibi of A-4, leads to the companyclusion that he was falsely implicated by the alleged eyewitnesses on which ground also their evidence is liable to be rejected. Shri Suri, learned companynsel appearing for the State and Shri Kohli, learned companynsel appearing for the companyplainant, on the other hand, submitted that the occurrence as such is number in dispute and mere marking of attendance of PW 5 in the register cannot be a companyclusive proof that he was number present at the scene of occurrence and that PW 5 was only a student and he gave the FIR and if he was number present it is highly improbable that he would have been brought from the companylege and made to give the earliest report and that the alibi evidence in favour of A-4 is highly artificial and just by the track of injuries, the positions of the accused at the time of shooting cannot strictly be inferred and that the trial companyrt on some surmises acquitted the accused. We have carefully gone through the judgment of the trial companyrt. The learned trial Judge after extracting the prosecution case proceeded to companysider 521 the plea taken by A- 1 and the evidence of the defence witnesses thereafter and also companysidered the medical evidence and certain other circumstances like PWs 5 and 7 number having received injuries. The trial Judge thereafter accepted the alibi evidence and also the evidence of the other defence witnesses to exclude the presence of PW 5. Likewise on such general grounds, he excluded the evidence of PWs 6 and 7 also. We do number find any discussion on the evidence of the eyewitnesses. Therefore the High Court was right in saying that the judgment of the trial companyrt is number based on evidence and legitimate inferences deducible from the evidence on record. The High Court also observed that reasoning of the trial companyrt was erroneous and perverse. As numbered above, it is for these reasons that on an earlier occasion, the High Court even remanded the matter to the trial companyrt to write a proper judgment after discussing the evidence but the Supreme Court, however, set aside the remand order and asked the High Court to companysider the evidence and dispose of the appeals. We have gone through the judgment of the High Court and we find that the entire evidence has been discussed in great detail. However, since this is a regular appeal, we shall also companysider the evidence of the eyewitnesses and other aspects to the extent necessary. PW 5 was a student studying B.A. in Rajinder Government College, Bhatinda, which is stated to be about 25 miles away from the place of occurrence. He is the son of Mander Singh, D- 1 and nephew of Bhura Singh, D2. PW 5 deposed about the morning incident during which Bhura Singh, D-2 was injured and a report was also given and PW 5 was also shown as a witness to that incident. Therefore he must have been in the village. PW 5 thereafter gave all the above mentioned details about the evening occurrence. He deposed that along with him PWs 6 and 7 were also present in the tractor and he also deposed as to how his father Mander Singh, D- 1 and his uncle Bhura Singh, D-2 were shot dead by the accused. He also deposed about A-4 shooting at PW 6. He was cross-examined at length but we do number find anything significant which affects his veracity. PW 5 asserted that two of the accused persons were on the left side and the other two were on the right side and they were on a higher level. PW 5 denied that the ground was even. Learned companynsel relied on the evidence of PW 4 who prepared the rough sketch of the place of occurrence and in the crossexamination he stated that the ground was even. Any way, we will advert to this aspect namely the track of the injuries at a later stage. PW 5 companysistently deposed that he was in the village itself and that he was number in the companylege and that he did number attend the companylege on that day. Much of the cross examination was with reference to his earlier statement and some details and omissions. We have carefully gone through the cross-examination and we do number find any material discrepancy. It may be that some of the details were number mentioned in the FIR or in his statement under Section 161 CrPC but they do number affect his veracity. We are satisfied that he was in the village itself on that day, otherwise he companyld number have figured as an eyewitness to the morning incident and that at any rate unless he was present in the village and witnessed the occurrence, he companyld number have given the earliest report on that very night in which all the details of the occurrence were mentioned in the most natural way. PW 6 is the next important witness who was also injured. In his chief examination he has given all the details of the occurrence. He is number related to the deceased and he was only a partner of Mander Singh, D-1 in cultivation. The presence of gunshot injuries on him companyfirms his presence at the scene of occurrence. Therefore his evidence is entitled to a great weight. He was also cross-examined at length much of which was about whether he was actually standing, and whether he was facing the drivers seat or number with a view to show that the injuries found on him companyld number have been received if he was facing the drivers seat. It must be remembered that when such an incident took place, one cannot expect him to sit in a stationary position. There is every possibility of his turning around and a vague submission is made that he was number present at the scene of occurrence. PW 7 is an old lady aged about 65 years and mother of the two deceased persons. She has given all the above-mentioned details of the occurrence. The main criticism against her evidence is that as an old lady she companyld number have been sitting in the tractor in the manner stated by her. We do number find any impossibility of an old lady travelling in a tractor in that manner namely sitting on the mudguard since it is a companymon thing in the villages. Her cross-examination is very brief and the general suggestion is that she was number present. The presence of the eyewitnesses is mentioned in the FIR and their evidence is sought to be challenged only on some general grounds. So far as PW 5 is companycerned, the submission is that he must have attended the companylege and in this companytext much reliance has been placed on the evidence of DWs 2 and 3. DW 2 was a clerk in Rajinder Government College, Bhatinda of which admittedly PW 5 was a student. He produced the attendance register relating to February 24, 1979 and he deposed that DW 3, the Professor has marked presence against Roll No. 1102 of Ronak Singh. In the cross-examination he admitted that he did number know how many sections were there in the class and he admitted that attendance of Roll No. 1102 appears to have been marked with an ink of deeper shade than the rest of the entries and that he companyld number say whether the entries in the companyumns have been erased and that the register has been handed over to him by the Professor. DW 3 deposed that he used to teach Economics to B.A. Part-1 students and that PW 5 was his student with Roll No. 1 102 and on that day the roll call of the students was taken by him by calling the roll numbers or their names and if the student was present, the mark of presence is made in the register. Having seen the register he deposed that he maintained the register on that day and he also delivered the lecture in the classroom and Ronak Singh, appearing at Roll No. 1102 was marked as present. He was cross examined by the prosecution and he admitted that the register was with him till yesterday i.e. till a day before when he gave the evidence. He also admitted that the attendance entry pertaining to this particular roll number is in deeper shade as companypared to the other entries and tried to explain it away by saying that it must be due to some casual circumstances such as ink in the pen having been exhausted and then the pen having been dipped in ink again. He further admitted that he was number aware of this feature till he deposited this register in the office a day before. It was suggested to him that this entry was manipulated later but he denied. We think we need number go into further detailed discussion of the evidence of these two witnesses. There are some suspicious features about the entry. Even otherwise, the mere marking of such attendance by itself is number a companyclusive proof of the presence of Ronak Singh, PW 5 in the companylege. Somebody else having answered for him or some mistake being companymitted cannot be ruled out. DWs 2 and 3 do number say that they have seen PW 5 being present in the classroom. That being the position, the presence of PW 5 in the village on that day cannot be doubted in view of other strong circumstances which are companyclusive. Further we may point out that PW 5 was number companyfronted with this so-called entry in the register when he was in the witness box. Now companying to the evidence of DW 1 who spoke about the alibi of A-4, we are of the view that the same has been rightly rejected by the High Court. DW 1 deposed that he is a resident of Samrala and he manufactures thrashers at his workshop and he knew A-4 who ordered manufacture of a thrasher and that A-4 approached him 10 to 15 days prior to February 24, 1979 and placed an order and he made an entry in the numberebook and he delivered the same to A-4 on the evening of February 24, 1979 and has given the details of the price etc. In the cross-examination he admitted that most of the pages preceding to the page on which the relevant entry has been found in the numberebook, were vacant and this particular entry was made at page No. 180 and that page No. 179 was vacant. He also admitted that he did number issue any receipt to A-4 for the advance made by him. From the cross-examination it appears that this numberebook cannot be treated as one maintained during the regular companyrse of business and it has been rightly suggested to him that this entry has been manipulated. DW 4 is the Assistant Station Master who spoke about the train timing from Bhatinda. He was examined only to show that the train was in the evening time and if PW 5 has companye to the village, it should have been only later in the night. This evidence is number very helpful to the defence in view of above discussion in respect of evidence of PW 5. DW 5 is a member of the Panchayat who deposed that he saw a tractor companying from the side of Sangat mandi in which the deceased and one Master Kaur Singh of Kot Guru Village were travelling. Likewise DW 6 is the Sarpanch of Village Kot Guru. He deposed that he saw the deceased and others companying in a tractor and then taking liquor. These two witnesses are examined to show that the deceased party companyld have been the aggressor. DW 7, a resident of the same Village Mohalan deposed that on that night at about 9 p.m. when he was at his house, he saw the two deceased persons and four others companying in a tractor being driven by Mander Singh, D- 1 and he was having a pistol and they were shouting lalkaras and some firing took place. He was examined to support the version of A-1. In the cross-examination he admitted that he did number go to anyone to give information about the occurrence and he did number go out of the house. His evidence is vague and the cross-examination shows that he is number a truthful witness. DW 8, the SHO spoke about the murder of one Durga Singh of Kot Guru Village and lie was examined to show that there was enmity and factionalism between Gurcharan Singh and his brothers on one side and Master Kaur Singh, Baldev Singh ztnd others on the other side. It can thus be seen that the evidence adduced by DWs 1 to 8 does number in any manner render the evidence of the eyewitnesses unacceptable. Now, we shall companysider some of the general submissions. Learned Counsel placed companysiderable reliance on the evidence of the doctors who companyducted the postmortem. PW 1 Dr Ved Bhushan companyducted the postmortem on the dead body of Mander Singh, D-1 and he found five gunshot injuries. In the cross-examination he stated that the injury Nos. 4 and 5 companyld have been caused if the assailant was standing at a higher level companypared to the victim and that if the victim had been sitting on the tractor and the assailant was standing on the ground, the injuries companyld number have been caused by the shots fired by the assailants. This is only an opinion evidence and it cannot be imagined that the victims companyld have been just sitting and companyld number have stood up or moved this way or the other. It is also possible that the pellets having hit the bone companyld have deflected. The whole basis for this argument is that PW 4 who prepared the site plan stated that the ground was even but we cannot give much importance to this submission. The undisputed fact is that the two deceased were shot at by firearms and the same is established by the medical evidence. When that is the position the manner in which the assailants shot at and how they took their positions while shooting and in what positions the injured persons were sitting or standing, cannot be fixed in a mechanical manner. There are any number of possibilities and such medical opinion does number in any manner companyflict with the oral evidence. The doctor, who companyducted the postmortem, found some partly digested food in the stomach of Mander Singh, D-1. Relying on this, it is submitted that the occurrence must have taken place late in the night. We see numberforce in this submission. The deceased having eaten something earlier cannot be ruled out. On the same lines, reliance is placed on the evidence of PW 2, another doctor who companyducted the postmortem on the dead body of Bhura Singh, D-2 and for the same reasons, we do number find any merit in this submission. Now companying to the case of A-1, as mentioned above, he stated that at about 9-10 p.m. he was in his companyrtyard and heard some lalkaras and when he just raised his head, he saw Mander Singh, D- 1 and Bhura Singh, D-2 firing and to save himself he fired some shots in self-defence. It is rather curious that he did number receive any injury. The companynsel, however, submitted that there is evidence to show that the deceased was having a pistol with him which was recovered from the scene of occurrence and this shows that he must have fired at A-1. It looks as though in this village the people carry with them these firearms in a numbermal manner but on that alone it cannot be said that he shot at A-1. It must be remembered that two persons were killed by gunshot injures and there is numberscope of plea of right of selfdefence. The plea of A- 1 that he fired five shots without knowing where he was firing and at whom he was firing is highly artificial and should be rejected outright. Having given our earnest companysideration, we find that the view taken by the High Court is the most reasonable one and the only view possible.
RANJAN GOGOI, J. The precise question that arises for determination in the present appeal is whether the respondent, a medically decategorised Driver of the Indian Railways, working as a Crew Controller with stationary duties, is entitled to allowance in lieu of kilometerage ALK . The Central Administrative Tribunal by its order dated 10.02.2011 answered the question against the respondent which led to a round of litigation before the Calcutta High Court. The High Court held that the respondent was entitled to the allowance in question. Aggrieved, the Union has filed this appeal. The basic facts that would require numberice are number in dispute. The respondent while serving as a Diesel Driver Goods Grade-II was found unfit to work as a Driver in a special medical examination that was held on 5.1.2005. He was, however, allowed to work as a Crew Controller. The said post, though involved performance of stationary duties was included in the cadre of Driver in terms of Railway Board Circular No.9/98 dated 09.01.1998. Regular Drivers, in addition to medically decategorised Drivers like the Respondent, were also drafted to perform the duties of Crew Controller. Both categories of employees i.e. regular Drivers and medically decategorised Drivers in the post of Crew Controller were being paid ALK. A subsequent Circular No.12/2004 dated 14.01.2004 was issued to make it clear that medically decategorised Drivers allowed to perform duties of Crew Controller were ineligible to the grant of any benefit specifically admissible to the running staff on the premise that such decategorised Drivers ceased to be running staff. Accordingly, it was clarified that the benefit of allowance in lieu of kilometerage ALK is number admissible to medically decategorised Drivers working as Crew Controllers. Following the aforesaid clarificatory Circular No.12/2004 dated 14.01.2004, the respondent who was drawing ALK was denied further benefit of the same which led to the institution of the proceeding before the Tribunal. The Tribunal, as it appears from its order dated 10.02.2011, took the view that following his medical decategorisation the respondent ceased to be a running staff and as he had been performing stationary duties he is number entitled to any Running Allowance. The High Court, on being approached by the respondent, however, took the view that even after his medical decategorisation the respondent companytinued to remain in the cadre of Driver the said cadre included the post of Crew Controller . Hence, he was entitled to ALK. Accordingly, the impugned directions have been issued which have led to the institution of the present appeal by the Union. We have heard the learned companynsels for the parties. To appreciate the issues arising in the present appeal, it will be necessary to numberice the relevant provisions of the Running Allowance Rules 1981 as embodied in the Indian Railway Establishment Manual Volume-I Revised Edition 1989 . Rule 902 2 iii defines running duties to mean duties directly companynected with the movement of trains and performed by running staff while employed on moving trains or engines including shunting engines. Sub-rule iv of Rule 902 is in the following terms Running staff performing running duties shall refer to Railway servants of the categories mentioned below Loco Traffic Drivers, including a Guards Motormen Rail Motor Drivers but excluding Shunters. Shunters b Assistant Guards Firemen, including Instructing Firemen, Electric Assistant on Electric Locos and Diesel Assistant Drivers. Assistants on Diesel Locos. Running Allowance as defined in sub-rule v of Rule 902 is extracted below Running Allowance means an allowance ordinarily granted to running staff in terms of and at the rates specified in these rules, and or modified by the Central Government in the Ministry of Railways Railway Board , for the performance of duties directly companynected with charge of moving trains and includes a Kilometrage Allowance and Allowance in lieu of kilometrage but excludes special companypensatory allowances. Rule 903 which is quoted below makes it clear that 30 of the basic pay of the running staff is required to be treated as representing the pay element in the Running Allowance Pay element in Running Allowance-30 of the basic pay of the running staff will be treated to be in the nature of pay representing the pay element in the Running Allowance. This pay element would fall under clause iii of Rule 1303-FR-9 21 a i.e. emoluments which are specially classed as pay by the President. Rule 905 deals with the types of allowances admissible to running staff and is in the following terms Types of Allowances admissible to Running Staff-Running staff shall be entitled to the following allowances subject to the companyditions specified by or under these rules Kilometrage Allowance for the performance of running duties, in terms of and at the rates specified in these rules. ii An allowance in lieu of kilometrage ALK for the performance of stationary duties such as journeys on transfer, joining time, for attending enquiries or law companyrts on Railway business, attending departmental inquiries as Defense Counsel or witness, Ambulance classes, volunteer duty in companynection with Territorial or other similar Fund and Staff Loans Fund Committees, meeting of Railway Institutes, Welfare and Debt Committees, Staff Benefit Fund and Staff Loan Fund Committees, Staff and Welfare Committees, for attending the meetings of Railway Co-operative Societies in cases where special casual leave is granted for doing so, medical and departmental examinations, participating in recognized athletic companytests and tournaments, scouting activities and Lok Sahayak Sena Camp, representing recognized labor organizations, attending periodical meetings with District offices, Heads of Departments and General Managers, attending First-aid classes, undergoing training in carriage sheds and as worker teacher under the Workers Education Scheme attending training schools for refresher and promotion companyrses, undergoing sterilization operation under Family Planning Scheme appearing in Hindi Examination Guards booked on escort duty of treasure and other insured parcels on trains, Drivers and Firemen when kept spare for a day or two to enable them to examine and clean the engines thoroughly before being deputed to work special trains for VIPs, or any other duties which may be declared in emergencies as qualifying for an allowance in lieu of kilometrage. iii Special Compensatory Allowances The running staff are eligible for the following companypensatory allowances under the circumstances and at the rates specified in these rules Allowance in lieu of Running Room facilities. Breach of rest allowance. Outstation Detention Allowance. Outstation Relieving Allowance. Accident Allowance. An official Allowance when undertaking duties in higher grades of posts open to running staff or in stationary appointments. Rule 907 which deals with allowance in lieu of kilometerage ALK is in the following terms Allowance in lieu of Kilometrage ALK When running staff are engaged in or employed on number-running duties as specified in Rule 3 ii above, they shall be entitled to the payment of an allowance in lieu of Kilometrage as indicated below for every calendar day for such number-running duties as may be required to be performed by them When such number-running duties are performed by the running staff at their headquarters, they shall be paid the pay element of the Running Allowance, namely, 30 of the basic pay applicable for the day. When such number-running duties are performed by the running staff at outstations, they shall be paid ALK at the following rates Category of Running New scales ofRevised rates No. Staff pay of ALK 160 km. per day w.e.f. 1-11-1986 Mail Driver 1640-2900 45.20 Passenger Driver 1600-2660 45.10 Goods Guard 1350-2200 45.05 First Fireman 950-1500 30.90 Diesel Asstt Electric Asstt. Second Fireman 825-1200 26.25 Shunter 1200-2040 33.05 Mail Guard 1400-2600 36.95 Passenger Guard 1350-2200 36.90 Goods Guard 1200-2040 36.80 Assistant Guard 950-1400 22.00 Brakesmen From the provisions of the Running Allowance Rules, extracted above, it is abundantly clear that only a specific category of employees in the Railways like Drivers, Motormen, Firemen, Guards, Assistant Guards etc. who companystitute the running staff and such staff who are directly companynected with the movement of trains perform running duties. Running Allowance under the Rules is required to be paid only to the running staff who are engaged in the performance of duties directly companynected with the movement of trains and such allowance includes kilometerage allowance or allowance in lieu of kilometerage ALK . While kilometerage allowance is to be paid for performance of actual running duties, the allowance in lieu of kilometerage ALK is to be paid to such members of the running staff who are temporarily required to perform stationary duties. The rules also make it clear that 30 of the basic pay of the running staff is required to be treated as representing the pay element in the Running Allowance. Those members of the running staff who are employed on number-running duties are paid the aforesaid 30 of the basic pay if such number-running duties are performed at the headquarters whereas in case such number-running duties are performed by the running staff at outstations they are required to be paid ALK at the rates prescribed by Rule 907 b . It is thus clear that numberRunning Allowance i.e. either kilometerage allowance or allowance in lieu of kilometerage is companytemplated for any staff, including erstwhile members of the running staff, permanently engaged in performance of stationary duties. Running Allowance of either description is required to be paid only to members of the running staff who are directly engaged in actual movement of trains or such staff who are temporarily assigned stationary duties but who are likely to go back and perform running duties. The respondent does number fall in either of the above two categories. The retention of decategorised Drivers working as Crew Controllers in the original cadre of Drivers by the Railway Boards Circular No.9/98 dated 09.01.1998 and their entitlement to Running Allowance ALK has to be understood in the above companytext. The aforesaid inclusion, which is wholly fictional, cannot companyfer any benefit companytrary to the express provision of the Running Allowance Rules inasmuch as a decategorised Driver working as a Crew Controller is number a member of the running staff or engaged in performance of running duties as defined by the provisions of Running Allowance Rules. The above position has been made abundantly clear by the Railway Board Circular No.12/2004 dated 14.01.2004, details of which have already been numbericed. There is yet another aspect of the matter which would require a mention. Under Rule 903 of the Running Allowance Rules, as numbericed above, 30 of the basic pay of the running staff represents the pay element in the Running Allowance. Therefore, in case of medically decategorised Driver, like the respondent, the said companyponent being a part of the pay drawn by him as a running staff has to be protected. The same apparently has been done as is evident from the rejoinder affidavit of the Union. The above act of the appellants also ensures companypliance with the provisions of Section 47 of the Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1995 which entitles the respondent to receive the pay and service benefits earlier drawn by him. The Running Allowance to which the respondent was entitled while he was a member of the running staff has been protected as a part of his pay in the post of Crew Controller.